ORDINANCE  OF  1787 


ND  THE  WAR   OF  1861 


LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

01  FT    OF  ^- 

THE  BANCROFT  LIBRARY- 


Class 


I  / 
S?7 


The  Ordinance  of  1787 


AND 


The  War  of  1861. 


AN    ADDRESS 

Delivered  before  the  New  York  Commandery 

of  the  Military  Order  of  the 

I/oyal  I/egion 


BY 


WAGBR  SWAYNE, 

One  of  their  number. 


NEW  YORK  : 
Printed  by  C.  G.  BURGOYNE. 


THE  ORDINANCE  OF  1787 


AND 


THE  WAR  OF  1861. 


COMMANDER  AND  COMPANIONS  : 

I  venture  to  ask  your  attention  to  what  seems  to  ine 
the  direct  and  impressive  connection  between  the  most 
conspicuous  result  of  that  war  which  brought  us  into 


*Some  time  since  the  committee  which  has  charge  of  the  banquets 
given  by  the  Commandery  impounded  me,  as  it  were,  and  required 
of  me  an  address  on  one  of  those  occasions.  I  related  to  the  Com 
mandery,  ex  tempore,  the  substance  of  what  I  have  now  printed.  It 
had  greatly  interested  me  in  reviewing  the  consequences  of  the 
war.  What  I  said  was  received  kindly,  and  a  resolution  was 
passed  asking  me  for  a  copy.  I  had  not  written  it  out,  and  at  the 
time  was  not  free  to  do  the  necessary  work.  I  have  since  tried 
to  do  it  with  some  thoroughness,  but  I  have  not  much  time  at  my 
disposal,  and  there  is  no  pretense  to  original  research.  I  have  felt 
free  to  make  it  much  more  full  than  as  I  spoke  it,  but  as  it  is 
done  at  the  request  of  the  Commandery  and  for  their  information, 
I  have  kept  to  its  original  form  of  an  address  delivered  before 
them. 

I  have  reprinted  the  Ordinance  as  an  appendix  to  this  paper. 


235107 


association  as  soldiers,  and  the  less  familiar  history  of 
a  movement  which  was  set  on  foot  by  another  company 
of  Associates,  of  another  American  army,  at  the  close 
of  the  Revolutionary  War. 

The  fruits  of  our  war  are  gathered  and  preserved,  so 
far  as  its  direct  effect  upon  our  own  Government  is 
concerned,  in  three  short  paragraphs  which  are 
amendatory  of  the  Federal  Constitution.  They  were 
adopted  soon  after  the  war,  and  with  the  express  inten 
tion  to  make  its  results  secure. 

There  have  been  fifteen  amendments  to  that  instru 
ment  since  it  was  adopted  on  the  first  Wednesday  in 
March,  1789.  The  first  ten  were  adopted  as  one,  im 
mediately  after  the  original  indenture,  and  under  cir 
cumstances  which  made  them  really  part  of  the  original 
transaction.  Another  followed  within  ten  years,  and  the 
next  one  five  years  later.  Then  there  were  sixty  years 
without  a  change. 

The  three  amendments  which  followed  the  last  war 
are  therefore  known  as  the  Thirteenth,  Fourteenth  and 
Fifteenth.  The  first  of  them  was  adopted  in  1865,  the 
next  in  1868,  and  the  last  in  1870. 

The  first  of  these  amendments  provides  that  : 

"  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the 
United  States  or  any  place  subject  to  their  jurisdic 
tion." 

The  second  provides  that : 

"All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citi 
zens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States,  nor  shall  any  State  de- 


prive  any  person  of  life,  liberty  or  property  without 
due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

The  third  provides  that : 

"  The  right  of  the  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States, 
or  by  any  State,  on  account  of  race,  color  or  previous 
condition  of  servitude." 

Each  of  them,  in  addition,  provides  that  Congress,  or 
"  The  Congress,"  as  the  Constitution  designates  our 
National  Legislature,  may  enforce  its  provisions  "by 
appropriate  legislation." 

There  are  subsidiary  sections  of  the  Fourteenth  Amend 
ment,  which  regulate  representation  in  Congress,  pro 
hibit  men  from  holding  office  (until  pardoned)  who 
having,  before  the  War,  taken  an  oath  of  office  to  sup 
port  the  Constitution  of  the  United  States,  were  not  de 
terred  by  that  fact  from  attempting  to  overthrow  that 
Constitution  ;  prohibit  questioning  the  validity  of  the 
public  debt  incurred  in  suppressing  the  Rebellion  ;  and 
prohibit,  also,  the  United  -States  and  every  State  from 
paying  any  debt  incurred  in  aid  of  the  Rebellion. 

All  these,  however,  are  of  incidental  or  transient 
operation.  The  three  clauses :  inhibiting  slavery ; 
making  all  persons  born  or  naturalized  in  the  United 
States  its  citizens,  and  citizens  of  their  respective 
States  ;  and  then  assuring  to  the  citizen  the  full  enjoy 
ment  of  all  his  rights  and  privileges  ;  these  are  the  sub 
stance  of  these  three  amendments  to  the  Federal  Con 
stitution,  and  these  three,  when  grouped  together,  are 
perceived  to  be  one.  That  one  is  but  the  ripened 
growth  of  the  primary  enactment,  which  is  itself  an 
adaptation  of  the  corresponding  phrase  in  the  event- 


6 

fill  "Ordinance  of  1787,"— "  There  shall  be  neither 
slavery  nor  involuntary  servitude  in  the  said  Territory, 
otherwise  than  in  the  punishment  of  crimes,  whereof 
the  party  shall  have  been  duly  convicted." 

It  will  be  easily  remembered  that  by  this  Ordinance, 
enacted  by  Congress  before  the  present  Constitution, 
the  United  States  assumed  jurisdiction  over,  and  estab 
lished  a  government  for,  what  was  then  known  as  the 
Northwest  Territory,  comprising  the  whole  vast  area 
between  the  Ohio,  the  Lakes,  and  the  Mississippi, 
which  last  was  at  that  time  the  western  boundary  of 
our  country. 

Originally  applicable  to  but  a  limited  area,  this  pre 
cept  of  that  Ordinance  is  now  made  to  apply  to  the 
whole  Union;  it  is  amplified  to  include  all  the  rights 
of  citizens,  and  for  its  honor  and  security  its  bene 
ficiaries  are  endowed  with  the  right  to  vote.  The 
War  was  a  purchase  of  the  rights  of  man ;  thes#  three 
amendments  are  the  title  deeds,  and  all  their  value 
rests  upon  this  declaration :  that  THEKE  SHALL  BE 

NEITHER  SLAVERY  NOR  INVOLUNTARY  SERVITUDE,  EXCEPT 
FOR  CRIME. 

It  is  a  touching  fact,  when  we  recall  how  much  it 
means,  that  only  this  should  be  the  fruit  of  that  great  war. 
We  personally  remember  how  for  four  years  it  kept  this 
country  torn  apart,  and  how  it  gathered  and  accumu 
lated  and  intensified  with  death  and  desolation  all 
of  those  feelings  which  urge  upon  the  human  heart  the 
most  vindictive  retribution.  One  of  the  parties  came 
to  be  in  a  position  to  inflict  such  retribution. 
The  situation  of  the  other  left  it  nothing  but  sub 
mission.  The  years  since  have  disclosed  the  scope 
of  what  was  actually  exacted.  The  historian  will  find  no 


list  of  executions  or  imprisonments ;  no  lasting  confis 
cations  or  disfranchisements  ;  110  State  impaired  in  full 
and  equal  sovereignty.  Nothing,  except  three  short 
amendments  to  the  Federal  Constitution,  all  securing, 
even  to  the  vanquished,  equal  rights.  Perhaps  it  is 
because  of  this  that  since  that  date  this  nation  has 
grown  so  great  that  even  the  future  of  the  world  seems 
brighter. 

This  precept  against  slavery  stands,  moreover,  as  the 
final  guaranty  of  individual  freedom  in  this  country  ; 
and  even  beyond  this,  I  cannot  but  feel  that,  involved 
with  its  history  are  not  only  the  origin  of  the  late  War 
and  the  final  triumph  of  the  right,  but,  also,  as  to  very 
many  of  us,  our  own  direct  and  personal  relation  to  the 
War. 

I  have  not  known  till  recently,  and  possibly  you  do 
not  fully  know,  how  far  the  officers  and  soldiers  of  the 
devolution  were  the  source  and  life  and  strength  of 
that  great  Ordinance,  nor  how  their  lives  have  by  its 
means  become  involved  with  our  own  lives,  nor  how  far 
that  inscription  came  from  them  which  is  at  once  the 
basis  of  our  liberties  and  the  seal  of  our  own  military 
service. 

I  begin  with  the  first  official  record.  In  a  report 
made  in  March,  1792,  by  a  Congressional  Committee  of 
the  House  of  Representatives,  to  whom  had  been  re 
ferred  a  petition  from  the  "  Ohio  Company  of  Asso 
ciates,"  the  committee  says: 

"They  find  said  Ohio  Company  laid  its  foundation  in 
an  application  to  the  United  States  in  Congress  assem 
bled  ;  a  copy  of  which  marked  '  No.  1 '  is  herewith 
presented  to  the  House." 

The   petition  referred    to   is   dated   June  16th,  1783, 


8 

and  is  signed  by  two  hundred  and  eighty-live  officers  of 
the  CoDtinerital  Army.  The  army  was  at  that  time  en 
camped  at  Newburgh  in  this  State,  waiting  to  be  dis 
charged  whenever  news  should  be  received  that  the 
treaty  of  peace  and  independence  had  been  formally 
concluded. 

Of  these  signers  seven  were  general  officers — Knox, 
Putnam,  Stark,  Paterson,  Hunting-ton,  Greaton  and 
Dayton.  Besides  these,  colonels,  lieutenant  colonels, 
surgeons,  majors,  chaplains,  paymasters,  captains, 
lieutenants  and  ensigns  were  duly  represented.  One 
hundred  and  fifty-five  were  from  Massachusetts,  thirty- 
four  from  New  Hampshire,  and  forty-six  from  Con 
necticut  ;  making  two  hundred  and  thirty-five  from  the 
New  England  States.  Thirty-six  were  from  New 
Jersey,  thirteen  from  Maryland,  and  one,  Captain  John 
Doughty,  of  the  artillery,  from  our  own  State  of  New 
York. 

To  me  so  much  of  interest  attaches  to  this  petition 
that  I  beg  leave  to  present  it  entire. 

To  His  EXCELLENCY  THE  PRESIDENT,  AND  HONORABLE 
DELEGATES  OF  THE  UNITED  STATES  OF  AMERICA  IN 
CONGRESS  ASSEMBLED  : 

The  petition  of  the  subscribers,  officers  in  the  conti 
nental  line  of  the  army,  humbly  showeth  : 

"  That  by  a  resolution  of  the  Honorable  Congress 
passed  September  20th,  1776,  and  other  subsequent 
resolves,  the  officers  (and  soldiers  engaged  for  the  war) 
of  the  American  Army,  who  shall  continue  in  service 
till  the  establishment  of  peace  or  in  case  of  their  dying 
in  service,  their  heirs  are  entitled  to  receive  certain 
grants  of  land  according  to  their  several  grades,  to  be 
procured  for  them  at  the  expense  of  the  United  States. 

"  That  your  petitioners  are  informed  that  that  tract  of 
country  bounded  north  on  Lake  Erie,  east  on  Penn- 


9 

sylvania,  southeast  and  south  on  the  river  Ohio,  west 
on  a  line  beginning  at  that  part  of  the  Ohio  which 
lies  twenty-four  miles  west  of  the  River  Scioto ; 
thence  running  north  on  a  meridian  line  till  it  inter 
sects  with  the  River  Miami  (Manmee)  which  falls  into 
Lake  Erie  ;  thence  down  the  middle  of  that  river  to  the 
lake  is  a  tract  of  country  not  claimed  as  the  property 
of  or  in  the  jurisdiction  of  any  particular  State  in 
the  Union.  That  this  country  is  of  sufficient  extent, 
the  land  of  such  quality  and  situation,  such  as  may 
induce  Congress  to  assign  and  mark  it  out  as  a  tract  or 
territory  suitable  to  form  a  distinct  government  (or 
colony  of  the  United  States),  in  time  to  be  admitted 
one  of  the  Confederated  States  of  America. 

"  Wherefore  your  petitioners  pray  that,  whenever 
the  Honorable  Congress  shall  be  pleased  to  procure 
the  aforesaid  lands  of  the  natives,  they  will  make  pro 
vision  for  the  location  and  survey  of  the  lands  to  which 
we  are  entitled  within  the  aforesaid  district ;  and  also 
for  all  officers  and  soldiers  who  wish  to  take  up  their 
lands  in  that  quarter. 

"  That  provision  also  be  made  for  a  further  grant  of 
lands  to  such  of  the  army  as  wish  to  become  ad 
venturers  in  the  new  government,  in  such  quantities 
and  on  such  conditions  of  settlement  and  purchase  for 
public  securities  as  Congress  shall  judge  most  for  the 
interest  of  the  intended  government,  and  rendering  it 
of  lasting  consequence  to  the  American  Empire. 

"  And  your  petitioners,  as  in  duty  bound,  shall  ever 
pray. 

"  June  16,  1783." 

We  have  here  a  body  of  officers  of  the  Continental 
Army,  while  yet  in  camp,  petitioning  Congress  "  to  as- 
':  sign  and  mark  out  a  tract  of  territory  suitable  to 
"  form  a  distinct  government  (or  colony  of  the  United 
"  States)  in  time  to  be  admitted  one  of  the  Confed- 
"  erated  States  of  America  ;  "  and  "  to  make  provision 
"  for  the  location  and  survey  of  the  lands  to  which  we 
"  are  entitled  within  the  aforesaid  district  ;  and  also 
"  for  all  officers  and  soldiers  who  wish  to  take  up  their 
"  lands  in  that  quarter  ;  "  and,  further,  that  upon  proper 


10 

conditions  of  settlement  and  purchase,  provision  also 
be  made  for  a  further  grant  of  lands  "  to  such  of  the 
11  army  as  may  wish  to  become  adventurers  in  the  new 
"  government." 

In  other  words,  here  is  a  movement  originating  with 
officers  of  the  Continental  Army  and  resulting  after 
wards  in  their  formal  organization,  which  from  the  first 
contemplated  the  distinct  and  apparently  exclusive  set 
tlement  of  a  new  State  by  officers  arid  soldiers  of  the 
Revolutionary  War.  In  the  end,  they  seem  to  have 
accomplished  more  than  this,  and,  as  I  have  suggested, 
to  have  left  their  distinct  impression  on  that  war  which 
has  associated  us.  Meantime,  however,  the  earlier  his 
tory  of  the  petition  is  instructive  and  pathetic. 

By  the  terms  of  confederation  of  the  thirteen 
colonies,  "  all  charges  of  war,  and  all  other  expenses 
"  that  shall  be  incurred  for  the  common  defense  or 
"  general  welfare,  and  allowed  by  the  United  States  in 
"  Congress  assembled,  shall  be  defrayed  out  of  a 
"  common  treasury,  which  shall  be  supplied  by  the 
"  several  States  in  proportion  to  the  value  of  all  land 
"  within  each  State.  The  taxes  for  paying 

"  that  proportion  shall  be  laid  and  levied  by  the 
"  authority  and  direction  of  the  Legislatures  of  the 
"  several  States."  *  *  "' 

This  method  presupposed,  and  required  for  its  effect 
ive  working,  that  the  Continental  Congress  be  cordially 
supported  by  the  several  Legislatures,  and  all  its  requi 
sitions  promptly  met.  As  a  matter  of  fact  the  Legisla 
tures  did  neither.  Concerning  them,  Washington 
wrote,  in  1783,  to  General  Greene  at  Newburgh  : 

"  I  have  written  almost  incessantly  to  all  the  States, 
urging,  in  the  most  forcible  terms  I  could  make  use  of, 


11 

the  absolute  necessity  of  complying  with  the  requisi 
tions  of  Congress  in  furnishing  their  contingents  of  men 
and  money,  and  am  unhappy  to  say  the  success  of 
these  applications  has  not  been  equal  to  my  expecta 
tions." 

This  unsatisfactory  condition  of  affairs  may  have 
been  caused  by  jealousy  of  the  centralized  power  of 
Congress  ;  it  may  have  been  that  popular  opinion  in 
the  colonies  did  not,  after  its  first  impulse,  fully  sup 
port  the  Revolutionary  War ;  but  it  is  clear  from 
Washington's  writings,  and  from  those  of  other 
contemporary  witnesses,  that  the  requisitions  of  Con 
gress  and  the  obligation  which  it  had  incurred  were 
the  subject  of  indifference  if  not  of  aversion  by  the 
States.  Thus,  in  a  letter  to  Governor  Harrison  of  Vir 
ginia,  Washington  writes  : 

"  How  well  the  States  are  provided  for  a  continuance 
of  the  war,  let  their  acts  and  policy  answer.  The  army, 
as  usual,  is  without  pay — and  a  great  part  of  the 
soldiery  without  shirts— and  though  the  patience  of 
them  is  equally  threadbare,  the  States  seem  perfectly 
indifferent  to  their  cries — in  a  word,  if  one  was  to 
hazard  for  them  an  opinion  on  this  subject,  it  would  be 
that  the  army  had  contracted  such  a  habit  of  encounter 
ing  difficulties  and  distress,  and  of  living  without  money, 
that  it  would  be  impolitic  to  introduce  other  customs 
into  it." 

Perhaps  here  is  an  explanation  of  the  fact  that  with 
bare  and  bleeding  feet  the  soldiers  of  the  Continental 
army  crossed  the  Delaware.  In  a  letter  to  Hamilton, 
Washington  says  that  to  the  defects  of  the  Articles  of 
Confederation,  and  to  "  want  of  power  in  Congress 
'•'  may  justly  be  ascribed  the  prolongation  of  the  war, 
"  and  consequently  the  expense  of  it."  He  adds : 
'•  More  than  half  of  the  perplexities  I  have  experienced 


12 

"  in  the  course  of  my  command,  and  almost  the  whole 
"  of  the  difficulties  and  distress  of  the  army,  have  had 
"  their  origin  there." 

The  disposition  of  the  States  towards  Congress,  its 
obligations  and  its  army,  did  not  improve  when  peace 
put  the  objects  of  the  war  in  possession,  and  when  the 
possibility  of  centralized  control  need  no  longer  be  en 
dured  as  the  alternative  of  foreign  subjugation.  A  re 
view  of  the  situation,  caustic,  but  probably  just,  is 
found  in  a  letter  to  James  Monroe,  which  was  written 
from  this  city  by  William  Grayson,  of  Virginia,  one  of 
the  foremost  members  of  Congress,  during  one  of  its 
sessions  here  : 

"  The  delegates  from  the  Eastward  are  for  a  very 
strong  government,  and  wish  to  prostrate  all  ye  State 
Legislatures,  and  form  a  general  government  out  of  ye 
whole,  but  I  don't  learn  that  ye  people  are  with  them  ; 
on  the  contrary,  in  Massachusetts  they  think  that 
Government  too  strong,  and  are  about  rebelling  again, 
for  ye  purpose  of  making  it  more  democratical.  In 
Connecticut  they  have  rejected  ye  requisition  for  ye 
present  year  decidedly,  and  no  man  there  would  be 
elected  to  ye  office  of  a  constable,  if  he  was  to  declare 
that  he  meant  to  pay  a  copper  towards  ye  domestic 
debt.  Rhode  Island  has  refused  to  send  members ;  ye 
cry  there  is  for  a  good  government  after  they  have  paid 
their  debts  in  depreciated  paper;  first,  demolish  ye 
Philistines  (i.  e.,  their  creditors)  and  then  for  propriety. 
N.  Hampshire  has  not  paid  a  shilling  since  peace,  and 
does  not  mean  to  pay  one  to  all  eternity.  If  it  was 
attempted  to  tax  ye  people  for  ye  domestic  debt,  500 
Shays  would  arise  in  a  fortnight.  In  N.  York  they  pay 
well,  because  they  can  do  it  by  plundering  N.  Jersey 
and  Connecticut.  Jersey  will  go  great  lengths  from 
motives  of  revenge  and  interest.  Pennsylvany  will 
join,  provided  you  let  ye  sessions  of  ye  Executive  of 
America  be  fixed  in  Philadelphia  and  give  her  other  ad 
vantages  in  trade  to  compensate  for  ye  loss  of  State 
power.  I  shall  make  no  observations  on  ye  Southern 
States,  but  I  think  they  will  be  (perhaps  from  different 


13 

motives)  as  little  disposed  to  part  with  efficient  power 
as  any  in  ye  Union." 

It  was  under  these  circumstances,  and  as  usual, 
without  pay,  that  the  army  at  Newburgh  confronted 
the  close  of  the  war.  The  country  was  fairly 
prosperous  ;  distress  affected  only  its  preservers.  The 
army  was  not  slow  to  see  this.  In  January,  1783,  a 
committee  of  officers  presented  themselves  at  Phila 
delphia  and  complained  that 

"  shadows  have  been  offered  us,  while  the  substance 
has  been  gathered  by  others.  Our  situation  compels 
us  to  search  for  the  causes  of  our  extreme  poverty. 
Our  distresses  are  now  brought  to  a  point. 
We  have  borne  all  that  men  can  bear  ;  our  property  is 
expended  ;  our  private  resources  are  at  an  end  ;  and 
our  friends  are  wearied  out  and  disgusted  with  our  in 
cessant  applications.  *  The  army  entreat  that 
Congress,  to  convince  the  world  that  the  independence 
of  America  shall  not  be  placed  on  the  ruin  of  any 
particular  class  of  her  citizens,  will  point  out  a  mode 
for  immediate  redress." 

The  testimony  of  Pickering,  their  Quarter-Master 
General,  shows  that  their  complaint  was  in  no  degree 
exaggerated : 

"  To  hear  the  complaints  of  the  officers  and  see  the 
miserable  condition  of  the  soldiery  is  really  affecting. 
It  deeply  penetrates  my  inmost  soul  to  see  men  desti 
tute  of  clothing  who  have  risked  their  lives  like  brave 
fellows,  having  large  arrears  of  pay  due  them  and  pro 
digiously  pinched  for  provisions.  It  is  a  melancholy 
scene.  *  *  Those  brave  and  deserving  soldiers, 

many  of  whom  have  for  six  years  exposed  their  lives  to 
save  their  country,  who  are  unhappy  enough  to  have 
fallen  sick,  have  for  a  month  past  been  destitute  of 
every  comfort  of  life.  The  only  diet  provided  for  them 
has  been  beef  and  bread,  the  latter  generally  SOUR." 


14 

Out  of  tliis  situation  grew  the  movement  I  am  at 
tempting  to  review.  In  March,  1783,  news  was  re 
ceived  in  camp  that,  while  the  treaty  of  peace  was  not 
yet  formally  signed,  it  was  definitely  settled  by  the 
preliminary  articles,  which  had  been  signed,  that  the 
territory  westward  of  the  colonies  and  extending  to  the 
Mississippi  river  would  be  ceded  to  the  United  States. 

We  have  also  seen  by  the  petition  that  soon  after  the 
Declaration  of  Independence,  and  by  other  subsequent 
resolutions,  Congress  had  expressly  pledged  grants  of 
land  to  the  officers  and  soldiers  of  the  army,  "  to  be 
procured  at  the  expense  of  the  United  States."  The 
United  States,  being  now  about  to  come  into  posses 
sion  of  this  vast  territory,  the  plan  at  once  suggested 
itself  to  these  expectant  grantees  to  secure  from  Con 
gress  that  their  grants  might  be  located  together  in 
that  part  of  the  territory  which  would  be  nearest  to 
their  original  homes,  and  then  to  settle  on  these  lands 
in  a  body.  To  that  end  they  would  require  for  their 
new  homes  an  established  government.  Hence,  they 
determined  also  to  ask  leave  to  organize  a  State. 

Just  at  this  time  Pickering  writes  : 

"  BUT  A  NEW  PLAN  IS  IN  CONTEMPLATION— NO  LESS  THAN 

"  THE  FORMATION  OF   A  NEW  STATE   WESTWARD   OF   THE 
"  OHIO.     SOME  OF  THE  PRINCIPAL  OFFICERS  ARE  HEARTILY 

"  ENGAGED  IN  IT." 

We  have  already  seen  that  this  project  contemplated 
the  settlement  of  the  new  State  mainly,  if  not  ex 
clusively,  by  officers  and  soldiers  of  the  Continental 
Army.  It  seems  also  to  have  contemplated  that  the 
constitutional  provisions,  by  which  its  government 
would  be  controlled,  should  be  determined  in  advance 
by  the  associates  with  whom  the  project  originated. 


15 

We  are  again  indebted  to  Pickering  for  a  record  of 
the 

"  PROPOSITIONS  FOR  SETTLING  A  NEW  STATE,  BY  SUCH 
"  OFFICERS  AND  SOLDIERS  OF  THE  FEDERAL  ARMY  AS  SHALL 
11  ASSOCIATE  FOR  THE  PURPOSE." 

Aside  from  such  of  these  propositions  as  are  re 
peated  in  the  petition  under  review,  I  can  pause  only 
to  notice  that  one  of  them  which  provides  that 

"  a  Constitution  for  the  new  State  be  formed  by  the 
members  of  the  association  previous  to  their  com 
mencing  the  settlement,  two-thirds  of  the  associates 
present  at  a  meeting  duly  notified  for  that  purpose 
agreeing  therein.  THE  TOTAL  EXCLUSION  OF  SLAVERY 
FROM  THE  STATE  TO  FORM  AN  ESSENTIAL  AND  IRREVOCABLE 
PART  OF  THE  CONSTITUTION."  * 


*  This  was  thirteen  years  before  slavery  was  abolished  in  New 
York,  and  twenty  years  before  New  Jersey  made  provision  for  its 
gradual  extinction.  Vermont  had  done  so  as  early  as  1777,  others 
of  the  New  England  States  in  1780,  or  soon  after.  The  original 
responsibility  for  the  presence  of  slavery  in  the  remaining  States  is 
well  illustrated  by  the  history  of  Virginia  in  this  respect,  as  sum 
marized  by  Professor  Miner  in  his  Institutes.  Commencing  in  1699, 
the  General  Assembly,  between  that  time  and  1772,  passed  twent}-- 
three  enactments  on  that  subject,  each  designed  to  exclude  slaves 
or  make  their  importation  difficult.  In  1772  the  last  of  these  laws 
was  supplemented  by  a  strong  petition  to  the  King  not  to  permit 
"  a  trade  of  great  inhumanity  and  dangerous  to  the  very  existence 
"  of  His  Majesty's  American  Dominion,"  in  order  that  a  few  of  his 
subjects  "  might  reap  emolument  from  this  sort  of  traffic."  The 
King's  response  was  cruel  and  outrageous.  Under  his  own  hand 
he  commanded  the  Governor,  "under  pain  of  his  highest  dis 
pleasure,  to  assent  to  no  law  under  which  the  importation  of 
"  slaves  should  be  in  any  respect  prohibited  or  restricted."  In  this 
same  year  the  English  courts  decided  that  a  slave  who  set  his  foot  on 
English  soil  was  free,  and  a  year  later  the  Quakers  in  England  began 
the  agitation  which  ended  in  the  abolition  of  the  slave  trade.  This 
action  of  the  King  of  England  is  that  "inhuman  use  of  his 
negative  "  which  is  referred  to  in  the  Virginia  Bill  of  Rights. 


16 

This  has  been  well  said  to  be  the  first  known  propo 
sition  among  men  to  establish  a  government  whose  dis 
tinctive  feature  should  be  universal  freedom.  It  came 
from  those  who  for  freedom  had  lost  all,  and  we  shall 
find  their  later  history  full  of  this  proposition  and 
its  outcome,  fuller,  doubtless,  than  they  themselves 
contemplated. 

"  In  the  eye  of  reason  and  of  truth,"  says  Bancroft, 
"  a  colony  is  a  better  offering  than  a  victory.  It  is 
"  more  fit  to  cherish  the  memory  of  those  who  founded 
"  a  State  on  the  basis  of  democratic  liberty."  These 
men  of  whom  I  speak  first  made  their  country  offer 
ings  of  victories,  then  founded  States  upon  the  basis  of 
universal  liberty,  and  afterwards,  as  it  appears  to  me, 
controlled  the  fortune  of  that  war  in  which  we  were 
engaged,  and  stamped  their  own  inscription  upon  its 
result. 

The  project  to  form  a  new  State  at  once  enlisted  the 
warm  sympathy  of  Washington.  He  wrote  a  long 
letter  to  Theodoric  Bland,  a  member  of  Congress 
from  Virginia,  and  asked  that  Hamilton  also  be  made 
acquainted  with  his  views.  Bland  presently  intro 
duced  an  ordinance,  seconded  by  Hamilton,  too  long 
and  too  elaborate  to  be  read  or  discussed  here, 
but  essentially  in  accord  with  the  views  of  the 
associates  ;  except  that  provision  was  made  for  the 
ultimate  division  of  the  whole  area  into  States.  It  was, 
moreover,  conditioned  upon  the  consent  of  Virginia  to 
a  change  in  the  terms  upon  which  that  State  had 
offered  to  surrender  to  the  United  States  her  claims  to 
the  entire  territory  between  the  Ohio,  the  Mississippi 
and  the  Lakes. 

This  was  referred  to  what   was    called  "The    Grand 


From  HARPER'S  MAGAZINE.     Copyright,  1885,  by  Harper  & 
Brothers. 


17 

Committee,"  and  was  never  afterwards  heard  from. 
Doubtless  the  intercourse  between  Congress  and  the 
army  which  attended  its  introduction  gave  the  army  to 
better  understand  the  opposing  interests  that  were  in 
volved.  Congress,  also,  meantime  was  paying  off  the 
army  in  certificates  of  money  due,  "  final  certificates," 
as  they  were  called,  such  as  were  issued  to  us  under 
the  same  name,  at  the  end  of  our  own  enlistment.  The 
difference  was  that  these  certificates  would  not  be  paid 
at  once  in  full,  as  ours  were. 

They  were  nominally  to  be  paid  in  six  months,  with 
interest  at  six  per  cent.  ;  but  they  sold  in  the  market 
at  two  and  three  shillings  specie  in  the  pound.  Hence 
we  find  the  petition  urging,  first,  grants  in  fulfillment  of 
the  pledges  made  by  resolutions  of  Congress,  passed  at 
different  times  during  the  war ;  and,  second,  provision 
for  farther  grants  "  to  such  of  the  army  as  may  wish  to 
become  adventurers  in  the  new  Government,  in  such 
quantities  and  on  such  conditions  of  settlement  and 
purchase  with  public  securities "  as  Congress  should 
approve. 

The  head  of  this  movement,  from  first  to  last,  as  we 
shall  hereafter  see,  was  General  Eufus  Putnam.*  The 


*  General  Rufus  Putnam,  a  man  of  strong  mind  and  great  char 
acter,  was  born  in  Sutton,  Mass.,  April  9th,  1738.  When  he  was 
seven  years  old  his  father  died.  For  two  years  thereafter  he  was 
under  the  care  of  his  maternal  grandfather,  who  gave  him  such 
opportunities  to  gain  knowledge  as  he  could.  He  learned  to  read, 
and  the  divine  fire  of  zeal  for  learning  was  kindled  within  him. 
His  stepfather,  a  rude  and  illiterate  man,  did  everything  in  his 
power  to  quencli  this  flame,  but  without  success.  The  boy  was  not 
allowed  to  go  to  school,  nor  to  use  a  candle  in  the  night  season,  but 
he  taught  himself  to  write,  and  saved  his  pennies  to  buy  a  spelling- 
book  and  an  arithmetic,  which  were  more  valuable  to  him  than  any 
earthly  treasure. 


18 

fact  that  the  movement  dates  from  the  arrival  in  camp 
of  news  that  the  northwest  territory  would  be  ceded  to 
the  colonies,  is  taken  from  a  memorandum  of  his  own. 
The  propositions  for  settlement,  Pickering  writes,  "  are 
in  the  hands  of  General  Rufus  Putnam  and  General 
Hunting  ton."  It  was  Putnam  who  sent  to  General 
Washington  the  petition,  with  a  long  letter  detailing 
the  considerations  in  its  favor.  We  shall  see  him  more 
and  more  prominent  as  the  project  becomes  tangible, 
until  its  consummation.  This  was  not  to  be,  however, 
for  four  long  years. 


When  he  was  sixteen  years  old  he  was  apprenticed  to  a  mill 
wright.  He  worked  by  day  and  studied  by  night  as  best  he  could. 
At  the  age  of  nineteen  he  was  free.  He  immediately  enlisted  in  the 
army,  and  was  a  soldier  in  the  wars  against  the  French  until  the 
conclusion  of  those  wars  in  17GO.  He  then  resumed  his  trade  as  mill 
wright,  giving  his  leisure  time  to  study,  learning  much  about  survey 
ing  and  navigation.  So  when  the  war  of  the  Revolution  broke  out 
he  was  a  mature  man,  well  equipped  for  usefulness.  He  was  one  of 
the  first  to  take  up  arms  in  behalf  of  his  country,  becoming  lieuten 
ant-colonel  of  a  Massachusetts  regiment.  His  services  as  engineer 
were  at  once  required,  and  under  his  direction  the  fortifications  at 
Roxbury  and  Sewell's  Point  were  successfully  constructed.  His 
genius  led  to  the  erection  of  works  on  Dorchester  Heights,  which 
compelled  the  evacuation  of  Boston  by  the  British  Army.  Soon 
thereafter  he  was  sent  to  New  York,  where,  as  chief  engineer,  he 
was  charged  with  the  duty  of  laying  out  and  overseeing  the 
defensive  works  which  were  erected  in  and  around  that  city.  In 
January,  1778,  he  was  at  West  Point,  superintending  the  building 
of  fortifications  there,  in  accordance  with  plans  which  have  not 
been  essentially  modified  even  to  this  day.  Washington  thought 
him  to  be  the  ablest  engineer  officer  in  the  American  Army.  Dur 
ing  part  of  the  War  he  fought  valiantly  at  the  head  of  two  Massa 
chusetts  regiments,  and  before  its  close  rose  to  the  rank  of 
Brigadier-G  eneral. 

When  peace  came,  he  found  that  the  quiet  farm  life  of  his  New 
England  home  was  no  longer  satisfying.  Besides,  he  longed  to  do 
something  towards  bettering  the  earthly  condition  of  many  of  his 
fellow-soldiers,  who  had  lost  their  all  in  the  revolutionary  struggle 
and  were  in  deep  distress.  He  urged  upon  Congress  that  lands 


19 

Washington  transmitted  to  Congress  the  petition, 
accompanied  by  Putnam's  letter  to  him,  and  also  himself 
wrote  urging  the  movement  as  "  the  most  rational  and 
practical  scheme  which  can  be  adopted  by  a  great  propor 
tion  of  the  officers  and  soldiers  of  our  army."  Already 
before  the  war  he  had  advertised  for  sale  "  upwards  of 
twenty  thousand  acres  of  land  on  the  Ohio  and  Great 
Kanawha,"  and  urged  their  advantages  for  settlement. 
Once  at  least  during  the  revolution,  when  his  military 
staff  were  depressed  by  foreign  news,  and  the  question 
was  put  to  him,  "  If  this  be  true,  and  we  are  driven 


should  be  appropriated  for  their  use,  in  which  plea  Washington 
joined  with  him,  doing  all  in  his  power.  The  plea  was  at  last  suc 
cessful.  On  the  31st  of  December,  1787,  he  made  the  following 
entry  in  his  journal :  ''Set  out  from  my  own  house,  in  Rutland,  in 
the  State  of  Massachusetts,  in  the  service  of  the  Ohio  Company, 
for  the  mouth  of  the  Muskingum  River  ;  wages  to  be  $40  per  month, 
and  expense  borne  by  the  company."  Of  this  simple  farm  house 
the  Hon.  George  F.  Hoar  writes  truly:  "It  is  a  plain  wooden 
dwelling,  perhaps  a  little  better  than  the  average  of  the  farmers' 
houses  of  New  England  of  that  day.  Yet  about  which  of  Europe's 
palaces  do  holier  memories  cling  ?  Honor  and  fame,  and  freedom 
and  empire,  and  the  fate  of  America  went  with  him  as  he 
crossed  the  threshold."  He  was  the  leading  spirit  of  the  new 
colonj',  "  again  and  again  called  to  take  the  helm  when  storms 
arose."  In  the  wars  with  the  Indians,  and  in  negotiating  terms 
of  peace,  his  services  were  invaluable.  So  great  was  Washington's 
personal  appreciation  of  his  ability,  that  without  solictation,  in 
1796,  he  issued  to  him  a  commission  as  Surveyor  General  of  the 
United  States.  His  character  had  already  won  for  him  the 
lasting  friendship  of  him  who  was  "first  in  war,  first  in 
peace,  and  first  in  the  hearts  of  his  countrymen."  Gen.  Putnam 
was  greatly  interested  in  all  that  concerned  education.  He  was 
also  a  deeply  religious  man,  recognizing  in  his  diary  many  things 
"  so  evidently  marked  by  the  hand  of  an  overruling  Provi 
dence."  In  1807  he  drew  the  plan  of  a  church,  which  still  stands 
as  a  monument  of  his  skill  and  of  his  interest  in  the  work  on  earth 
of  the  Divine  Saviour  of  men.  He  died  at  his  home  in  Marietta, 
respected  and  venerated  by  all  who  knew  him,  on  the  4th  of 
May,  1824. 


from  the  Atlantic  seaboard,  what,  then,  is  to  be  done  ?" 
he  replied :  "  We  will  retire  to  the  Valley  of  the  Ohio, 
and  there  we  will  be  free."  The  same  thought  of  set 
tlement  there,  and  apparently  also  of  purchase  of  lands 
by  officers  and  soldiers  who  should  make  payment  with 
certificates  of  money  due,  is  presented  again  in  his 
farewell  address  in  which  he  says  : 

"  The  extensive  and  fertile  region  of  the  West  will 
yield  a  happy  asylum  to  those  who  are  fond  of  domestic 
enjoyment  and  are  seeking  for  personal  independence. 
Nor  is  it  possible  to  conceive  that  any  one  of  the 
United  States  will  prefer  a  national  bankruptcy  and  a 
dissolution  of  the  Union  to  a  compliance  with  the  req 
uisitions  of  Congress  and  the  payment  of  its  just 
debts." 

A  little  later,  September  7,  1783,  in  a  letter  to  James 
Duane,  a  member  of  Congress,  he  proposed  the  first 
definite  plan  for  the  establishment  of  new  States  west 
of  the  Ohio,  and  with  it  he  suggested  measures  for  a 
comprehensive  policy  of  dealing  with  the  very  serious 
"  Indian  question  "  of  those  days. 

The  officers'  petition  arrived  at  precisely  the  wrong 
time.  Five  days  after  its  date  Congress  in  Philadel 
phia  was  surrounded  and  put  in  peril  by  mutinous 
unpaid  Pennsylvania  troops,  and  forthwith  betook  itself 
to  Princeton.  Until  it  came  here  to  New  York,  in 
January,  1785,  it  was  always  a  migratory  and  often  a 
fugitive  body  from  the  necessities  of  war.  It  was  often 
for  long  periods  without  a  quorum. 

In  addition  to  the  inopportuneness  of  its  presenta 
tion  to  Congress,  it  was  also  unfortunately  true  that  the 
petition  was  inaccurate  in  stating  that  the  tract  whose 
boundaries  it  defined  was  not  claimed  as  the  property 
of  or  within  the  jurisdiction  of  any  particular  State, 


21 

for  it  was,  in  fact,  all  claimed  by  Virginia,  and  parts  of 
it  also  by  other  States. 

In  1778  General  George  Eogers  Clark,*  armed  with  a 
commission  from  Virginia,  and  literally  with  nothing 
else,  had,  single-handed,  raised  troops,  gathered  sup 
plies  and  had  subdued  and  kept  possession  of  the  Eng 
lish  forts  at  Kaskaskia,  on  the  Mississippi  near  St. 
Louis,  Cahokia,  and  at  Vincennes,  on  the  Ohio. 

Upon  this  fact  of  possession  the  American  Commis 
sioners  at  Paris  had  successfully  asserted  that  the 
treaty  of  peace  should  cede  to  the  United  States  the 
entire  territory  between  the  Ohio,  the  Misisssippi  and 
the  Lakes.  The  position  at  once  taken  by  Virginia 
was  that  the  United  States  comprised  and  could  com 
prise  only  the  States  themselves,  so  that  all  lands 


*  It  is  a  fact  of  importance  in  estimating  the  character  and 
claims  of  General  Clark  on  the  American  people  that  the  Legislature 
of  Virginia  did  not  furnish  him  with  money  or  other  means  to  ac 
complish  the  service  they  had  appointed  him  to  perform.  They 
merely  sent  him  a  commission  accompanied  with  power  to  recruit 
men  and  make  contracts  obligatory  on  the  State.  *  *  *  On  the 
credit  of  that  document  lie  was  enabled  for  some  time  to  raise  supplies 
of  provision,  clothing,  &c.,  for  the  sustenance  and  comfort  of  his 
troops,  for  which  he  drew  on  the  commonwealth  in  favor  of  the 
persons  who  had  furnished  the  supplies  ;  his  drafts  being  accom 
panied  with  such  vouchers  as  are  usually  furnished  on  similar  oc 
casions.  To  his  astonishment  and  the  surprise  of  all  who  knew  the 
facts,  these  drafts  were  dishonored,  for  such  reasons  as  could  not 
but  wound  the  feelings  of  the  gallant  chief  who  had  drawn  them." 
He  was  compelled  to  impress  supplies  for  the  use  of  his  troops,  and 
"  the  persons  whose  property  was  taken  b}r  force  commenced  suits 
and  obtained  judgments  against  the  general  in  the  courts  of  the 
territory,  on  which  portions  of  his  property  were  attached  and 
sold."  The  cruel  ingratitude  of  which  he  wras  the  victim  drove  him 
to  intemperance.  His  health  became  infirm.  He  suffered  severely 
from  rheumatism  which  resulted  in  paralysis.  Notes  on  the  Early 
Settlement  of  the  Norilnreatern  Territory,  by  Hon.  Jacob  Burnet, 
page  81.  Also  Indiana,  by  J.  P.  Dunn,  Jr. 


22 

within  the  United  States  must  of  necessity  belong  to 
some  one  of  the  States.  For  herself,  her  charter  ran 
"  from  sea  to  sea,  to  the  west  and  northwest."  Sir 
Francis  Drake  had  reported  that,  standing  on  a  moun 
tain  on  the  Isthmus  of  Darien,  the  Atlantic  and  Pacific 
were  both  within  his  view.  Probably  from  this  fact  an 
impression  had  grown  up  in  Europe  that  this  strip  was 
comparatively  narrow.  Hence  other  early  charters  ran 
somewhat  in  the  same  way ;  and  when  in  1608  an  expe 
dition  under  orders  direct  from  England  was  sent  to  ex 
plore  the  James  River,  a  barge  was  sent  out  for  Captain 
Newton  which  could  be  easily  taken  apart,  and  he  and 
his  company  were  directed  "  to  go  up  the  James  River 
"  as  far  as  the  falls  thereof  (where  the  City  of  Richmond 
"  is  now  situated),  and  from  thence  they  were  to  proceed 
"  carrying  their  barge  beyond  the  falls  to  convey  them  to 
"  the  South  Sea,  and  were  ordered  not  to  return  without 
"  a  lump  of  gold  or  the  certainty  of  the  said  sea." 

This  charter  of  Virginia  was  not  originally  granted 
to  Virginia  as  a  colony,  but  to  a  corporation  styled 
"  The  Treasurer  and  Company  of  Adventurers  and 
Planters  of  the  City  of  London  for  the  First  Colony  of 
Virginia."  They  were  to  have  : 

"  All  those  lands,  countries  and  territories  situate, 
lying  and  being  in  that  part  of  America  called  Virginia, 
from  the  point  of  land  called  Cape  or  Point  Comfort  all 
along  the  sea  coast  to  the  northward  two  hundred 
miles,  and  from  the  said  Point  Comfort  all  along  the 
sea  coast  southward  two  hundred  miles,  and  all  that 
space  and  circuit  of  land  lying  from  the  sea  coast  of 
the  precinct  aforesaid  up  into  the  land  throughout  from 
sea  to  sea,  west  and  northwest ;  and  also  all  the  islands 
lying  within  one  hundred  miles  along  the  coast  of  both 
seas,  of  the  precinct  aforesaid  ;  to  hold  the  same  in  free 
and  common  socage." 


23 

This  charter  had  been  taken  from  the  London  Com 
pany  in  1624,  by  a  quo  warrcuito  proceeding  instituted 
by  the  King.  The  boundaries,  however,  on  the  north 
and  south  continued  to  be  those  of  the  colony,  and  no 
new  western  boundary  had  otherwise  than  by  implica 
tion  been  established.  Hence,  the  colony  regarded  its 
own  area  as  coextensive  with  the  original  grant  so  far 
as  north  and  south  boundaries  were  concerned,  and  to 
the  westward  also,  till  the  Spanish  boundary  was 
reached. 

Arguing  its  own  right  from  this  basis,  fortified  by 
the  fact  of  conquest  by  the  troops  of  General  Clark, 
Virginia  passed  a  legislative  act  in  October,  1778, 
reciting  that, 

"  by  a  successful  expedition  of  the  Virginia  militia 
on  the  western  side  of  the  Ohio  River,  several  of  the 
British  posts  within  the  territory  of  this  Commonwealth, 
in  the  country  adjacent  to  the  .Mississippi  River,  have 
been  reduced,  and  the  inhabitants  have  acknowledged 
themselves  citizens  thereof  and  taken  the  oath  of 
fidelity  to  the  same." 

The  same  act  went  on  to  provide  that 

"  all  citizens  of  this  commonwealth,  who  are  already 
settled  or  shall  hereafter  settle  on  the  western  side  of 
the  Ohio  as  aforesaid,  shall  be  included  in  a  distinct 
county,  which  shall  be  called  Illinois  County." ' 

Further  provision  is  then  made  for  the  protection 
and  development  of  the  country,  under  the  auspices  of 
a  county  lieutenant  or  commandant-in-chief,  and  "  for 
"  supplying  the  said  inhabitants,  as  well  as  our  friendly 


*  Laws  of  Virginia:,  Hening's   Statutes  at   Large,  Vol.  9,  p.  552, 
Chap.  XXI. 


24 

"  Indians  in  those  parts,  with  goods  and  other  neces- 
"  saries,  either  by  opening  a  communication  and  trade 
"  with  New  Orleans  or  otherwise,"  <fcc. 

This  was  succeeded  by  other  legislative  acts  reserv 
ing  specific  areas  for  distribution  to  Virginia  troops, 
both  the  militia  and  her  own  contingent  in  the  Conti 
nental  Army,  and  finally,  in  1781,  by  an  elaborate  sys 
tem  for  disposing  of  other  lands  to  purchasers. 

This  provoked  the  remaining  colonies,  the  State  of 
Maryland  especially  forwarding  to  Congress  resolu 
tions  that  the 

"  extensive  tract  of  country  which  lies  to  the  west 
ward  of  the  frontiers  of  the  United  States  had  been 
or  might  be  gained  from  the  King  of  Great  Britain  or 
the  native  Indians  by  the  blood  and  treasure  of  all,  and 
ought,  therefore,  to  be  a  common  estate  to  be  granted 
out  on  terms  beneficial  to  all  the  United  States." 

The  other  States  so  far  sympathized  with  this  view 
that,  after  the  war  was  closed,  they  held  aloof,  mainly 
on  this  ground,  from  further  cementing  the  union  of 
the  States.  Meantime,  New  York,  "  to  promote  the 
general  interest  and  security,  and  more  especially  to 
accelerate  the  Federal  alliance,"  by  an  Act  of  its  Legis 
lature,  relinquished  all  its  claim. 

Virginia  and  Connecticut  thereupon  did  the  same, 
but  with  conditions,  and  it  was  not  until  1785,  or  two 
years  after  the  petition,  that  the  United  States  was  in  a 
position  either  to  bestow  the  lands  or  authorize  a  plan 
of  government. 

The  petition  of  June  16,  1783,  recognizes  the  neces 
sity  of  treaties  with  the  Indians  before  any  attempt  at 
occupation  should  be  made.  I  cannot  here  detail  the 
steps  by  which  these  difficulties  were  removed.  It  was 


25 

not  until  January,  1786,  that  the  last  of  them  was  re 
moved  by  a  treaty  with  the  Wyandottes,  Delawares  and 
Shawnees,  formally  ceding  to  the  United  States,  except 
as  to  certain  reservations,  all  title  to  the  Northwest 
Territory. 

Simultaneously  with  this  treaty  (January  25,  1786) 
General  Eufus  Putnam  and  Colonel  Benjamin  Tup- 
per,  also  a  signer  of  the  petition,  published  in  the 
newspapers  of  Boston  a  call  headed  "  INFORMATION," 
addressed  to  "  all  officers  and  soldiers  who  have 
"  served  in  the  late  war,  and  who  are,  by  a  late 
"  ordinance  of  the  Honorable  Congress,  to  receive 
"  certain  tracts  of  land  in  the  Ohio  country,  and  also 
"  all  other  good  citizens  who  wish  to  become  adven- 
"  turers  in  that  delightful  region,"  to  hold  a  meeting  in 
each  county  on  Wednesday,  the  fifteenth  of  February, 
to  choose  a  delegate  or  delegates  "  to  meet  at  the 
"  Bunch  of  Grapes  Tavern*  in  Boston  on  Wednesday  the 


*  The  Bunch  of  Grapes  Tavern  was  situated  at  the  corner  of 
King,  now  State  street,  and  Mackerel  Lane,  in  Boston.  It  ac 
quired  celebrity  previous  to  the  Revolution  under  the  management 
of  Francis  Holmes.  "It  is  quite  safe  to  assume,"  says  Mr.  Edwin 
L.  Bymer  in  the  Atlantic  Monthly,  "  that  Holmes  kept  a  house  both 
of  good  order  and  abundant  cheer  ;  else,  be  sure,  the  Hon.  Samuel 
Sewall  had  not  so  much  affected  it.  Nothing  would  have  tempted 
that  staunch  old  Puritan  to  frequent  an  inn  of  ill  or  indefinite  re 
pute.  The  fact  that  in  1728  the  Bunch  of  Grapes  was  chosen  as  the 
lodging  place  of  Governor  William  Burnet  shows  that  it  had  already 
attained  the  first  rank  among  the  hostelries  of  the  town."  In  1735 
the  first  Grand  Lodge  of  Free  and  Accepted  Masons  in  America 
was  organized  here.  The  earliest  benevolent  association  in  Boston, 
and  one  of  the  oldest  in  America,  the  Scots'  Charitable  Society,  held 
its  meetings  during  1767  and  1768  at  the  Bunch  of  Grapes.  A 
tradition  is  also  current  that  the  first  meeting  for  the  organization  of 
Trinity  Church,  Boston,  was  held  at  the  Bunch  of  Grapes.  The 
Boston  Massacre  took  place  almost  before  its  very  door,  and  after 
the  evacuation  of  Boston  by  the  British  :  Washington  was  a  guest 


26 

"  first  day  of  March,  next,"  in  order  to  form  "  an  asso- 
"  elation,  by  the  name  of  THE  OHIO  COMPANY,  of  all  such 
"  as  wish  to  become  purchasers,  <fcc.,  in  that  country, 
"  who  reside  in  the  Commonwealth  of  Massachusetts 
"  only,  or  to  extend  to  the  inhabitants  of  other  States, 
"  as  may  be  agreed  on."  It  will  be  recalled  that  in  1792 
a  Congressional  Committee  reported  that  this  "  OHIO 
COMPANY  "  "  laid  its  foundation  "  in  the  petition  signed  at 
Newburgh  for  a  new  State  west  of  the  Ohio.  This  was 
less  than  nine  years  from  the  date  of  the  petition  and 
less  than  five  years  after  the  company  was  organized. 
Numerous  signers  of  the  petition  were  at  the  time  in 
Congress  and  in  Federal  official  place,  so  that  personal 
knowledge  on  the  subject  was  abundant. 

Forty-seven  signers  of  the  petition  became  members 
of  the  company  when  organized.  To  these  should  be 
added  several  persons  who  were  sons  of  deceased 
signers,  and  several  other  persons  who  were  signers  of 
the  petition  and  became  settlers  with  the  rest,  but  did 
not  become  members  of  the  company.  Probably  they 
had  sold  their  certificates  and  were  without  other  means 
of  acquiring  an  interest.  The  plan  adopted  as  the  basis 
of  this  organization  was  a  purchase  of  lands  in  bulk,  the 
purchase  money  to  be  subscribed  in  shares,  subscriptions 
payable  in  "  final  certificates,"  as  the  original  petition 
had  contemplated.  The  call  found  favor,  and  the  dele 
gates  met  March  8th,  1786,  at  the  Bunch  of  Grapes 


at  this  tavern.  The  Sons  of  Freedom  gave  an  entertainment  in 
honor  of  Gen.  Stark  in  1877,  and,  at  a  late  period,  Lafayette  was  a 
visitor  at  the  Bunch  of  Grapes.  The  first  meeting  for  the  organiza 
tion  of  the  Ohio  Company  was  held  at  this  hostelry,  and,  "  on  the 
whole,  it  may  perhaps  be  considered  the  most  memorable  event 
connected  with  its  history."— Atlantic  Monthly  for  December,  1889. 


27 

Tavern  as  proposed.  General  Rufus  Putnam  was  elected 
chairman  of  the  meeting.  A  committee,  composed  of 
himself,  General  Samuel  H.  Parsons  and  Rev.  Manasseh 
Cutler,  was  appointed  to  receive  such  subscriptions, 
payable  in  public  securities,  and  which  securities,  when 
received,  should  be  applied  to  the  purchase  from  Congress 
of  a  quantity  of  land  west  of  the  Ohio,  upon  which  the 
subscribers  were  to  settle.  One  year  was  allowed  for 
procuring  subscriptions,  and  on  March  8th,  1787,  the 
association  reconvened,  this  time  at  Brackett's  Tavern*, 
Boston.  The  subscriptions  were  considered  enough  to 
warrant  the  undertaking.  The  company  was  then 
formally  organized  as  the  Ohio  Company  of  Associates.  + 
General  Eufus  Putnam,  General  Samuel  H.  Parsons 
and  Eev.  Manasseh  Cutler  were  elected  directors. 


*  Brackett's  Tavern,  or  Cromwell's  Head,  was  in  School  street, 
Boston.  "  It  was  kept  by  Anthony  Brackett  in  1760,  by  his  widow 
from  1764  to  1768,  and  later  by  Joshua  Brackett.  Its  repute  was 
good,  for  we  find  the  Marquis  Chastellux  alighting  there  in  1782, 
before  paying  his  respects  to  M.  de  Yaudreuil,  commander  of  the 
French  fleet  that  was  to  carry  away  Rochambeau's  army."  After 
Braddock's  defeat  in  1756,  Lieut.  Col.  Washington  visited  Boston, 
and  was  a  guest  at  the  Cromwell's  Head. — Old  Landmark*  of  Boston, 
by  S.  A.  Drake. 

t  u  Among  the  many  distinguished  men  who  were  members  of 
the  Ohio  Company,  but  who  never  became  actual  settlers,  were 
Hamilton  and  Dexter,  the  first  and  third  Secretaries  of  the  Treas 
ury  ;  Henry  Knox,  the  first  Secretary  of  War  :  three  Governors  of 
Massachusetts,  of  whom  one  was  also  a  Vice-President  of  the 
United  States  ;  a  Governor  of  Rhode  Island  and  a  Governor  of 
Connecticut ;  a  United  States  Senator  from  Connecticut,  a  Post 
master-General  under  the  Continental  Congress,  an  Associate 
Justice  of  the  United  States  Supreme  Court,  and  a  President  of 
Harvard  College."  (From  a  paper  read  before  the  Ohio  Society  of 
New  York  by  John  Q.  Mitchell.) 

More  than  a  hundred  officers  of  the  Revolutionary  Army  were 
also  members  of  the  company. 


28 

Gen.  James  M.  Varnuin  was  subsequently  added  to 
their  number.  Major  Wiiithrop  Sargeant  was  appointed 
secretary.  General  Parsons  was  empowered  to  proceed 
at  once  to  New  York  and  there  negotiate  with  Congress 
for  the  purchase  of  the  lands. 

General  Parsons  differed  seriously,  and  perhaps 
wisely,  from  the  majority  of  the  associates  as  to  what 
lands  it  was  best  to  purchase,  if  they  could  purchase  at 
all*  He  preferred  the  Valley  of  the  Scioto,  for  its  rich 
and  level  bottoms.  They  preferred  the  Valley  of  the 
Muskingum,  for  its  several  navigable  streams  and  for 
the  long  front  on  the  Ohio  which  the  bend  in  that 
river  gave.  The  difference  between  the  associates  and 
General  Parsons  led  to  the  transfer  of  his  mission, 
quite  early  in  the  summer,  to  the  Rev.  Dr.  Cutler. 
This  gentleman  had  been  an  army  chaplain  in  the 
Revolutionary  War,  and  at  the  time  of  his  appointment 
to  succeed  General  Parsons  was  a  Congregational 


*The  lamented  General  William  T.  Sherman  was  often  present  at 
the  banquets  of  the  New  York  Commandery,  and  was  so  on  the 
evening  when  this  address  was  delivered.  He  was  warmly  inter 
ested  in  the  subject,  having  passed  his  boyhood  and  youth  among 
the  immediate  descendants  of  these  revolutionary  pioneers,  and 
having  also  married  into  the  family  of  one  of  them,  the  Hon. 
Thomas  Ewing,  who  was  the  first  Secretary  of  the  Interior,  and 
was,  perhaps,  the  ablest  jurist  and  most,  eminent  citizen  who  ever 
grew  up  in  Ohio.  General  Sherman  wrote  to  me  in  this  connection 
a  letter,  from  which  I  extract  the  following  : 

"  Mr.  Swing's  knowledge  surpassed  all  others,  and  I  am  sure  he 
'  told  me  that  the  bargain  of  the  old  Revolutionary  soldiers  with 
'  Uncle  Sam  was  a  hard  one  and  their  selection  of  land  a  poor  one. 
<  *  *  *  Qur  Revolutionary  citizens  drove  a  hard  bargain  with 
'  the  heroes  whom  they  did  not  pay  when  peace  was  secured. 
'  *  *  *  In  war,  as  in  shipwreck,  the  passengers  cry  aloud : 
'  '  Save  our  lives  and  we  freely  give  you  all  our  worldly  goods  ! ' 
'  but  the  firm  land  once  under  foot  they  exclaim  :  '  You  got  your 
'  pay  and  you  ought  to  be  content !  '  " 


29 

clergyman  preaching  at  Ipswich,  Mass.  He  drove 
in  a  sulky  from  Ipswich  to  New  York,  arriving  at  the 
latter  place  July  5,  1787,  and  in  his  diary  says  : 

"About  three  o'clock  I  arrived  at  the  citv  by  the 
road  that  enters  the  Bowery.  Put  up  my  horse  at  the 
sign  of  the  Plow  and  Harrow,  in  the  Bowery." 

The  day  after  his  arrival  he  writes : 

"  At  eleven  o'clock  I  was  introduced  to  a  number  of 
members  on  the  floor  of  Congress  chamber  in  the  City 
Hall,  by  Colonel  Carrington,  member  for  Virginia." 

This  City  Hall  stood  on  the  corner  of  Wall  and 
Nassau  streets,  the  site  of  the  present  sub-treasury  of 
the  United  States.  The  city  authorities  had  tendered 
it  to  the  Congress  convened  under  the  Articles  of  Con 
federation,  by  whom  it  was  occupied,  until  they  in 
turn  were  succeeded  by  the  Congress  assembled  under 
the  present  Constitution.  A  statue  of  Washington  now 
designates  the  spot  where  he  was  first  inaugurated,  on 
the  balcony  of  the  Hall,  April  30,  1789.  To  rne  the 
site  of  this  Hall  has  another  and  a  peculiar  interest 
from  the  fact  that  it  was  here  also  that  the  Ordinance 
of  1787  was  enacted. 

Let  me  now  trace  briefly  the  connection  between  the 
Petition  and  the  Ordinance.  We  have  seen  that,  at 
the  first  inception  of  the  project,  and  in  advance  of  the 
petition,  Washington  wrote  to  Theodoric  Bland,  who 
introduced  in  Congress  an  ordinance  apparently  de 
signed  to  carry  out  the  views  of  the  petitioners,  but 
that  facts  then  existing  made  the  project  at  the  time 
impracticable.  In  September,  1783,  General  Knox 
wrote  to  General  Washington  : 

"  I  am  daily  solicited  for   information  respecting  the 


30 

progress  of  the  officers'  petition  for  a  new  State  west 
ward  of  the  Ohio.  *  *  * 

11  Were  the  prayer  of  the  petition  to  be  granted,  the 
officers  in  a  few  years  would  make  the  finest  settlement 
on  the  frontier,  and  form  a  strong  barrier  against  the 
barbarian.  *  *  * 

"  Congress  have  evinced  so  much  wisdom  and  mag 
nanimity  in  their  conduct,  that  it  cannot  be  doubted 
that  they  will  make  the  most  substantial  arrangements 
for  future  exigencies  consistent  with  their  revenue  and 
their  nicest  economies." 

During  the  same  month,  as  I  have  said,  Washington 
wrote  to  James  Duane,  a  member  of  Congress  from 
New  York,  proposing  "  the  first  definite  plan  for  the 
formation  of  new  States  in  the  West,"  and  also  outlin 
ing  a  broad  scheme  of  policy  for  dealing  with  the 
Indian  question,  thus  dealing  at  once  with  the  two 
points  most  essential  to  the  wish  of  the  petitioners. 
In  the  same  month  Congress  accepted  the  cession  from 
Virginia,  with  a  single  condition  precedent,  which  was 
eventually  approved  of  by  that  State. 

April  5,  1784,  General  Rufus  Putnam  wrote  to  Wash 
ington  again  : 

"  You  are  sensible  of  the  necessity,  as  well  as  the 
possibility,  of  both  officers  and  soldiers  fixing  them 
selves  in  business  somewhere  as  soon  as  possible,  as 
many  of  them  are  unable  to  lie  longer  on  their  oars, 
waiting  the  decision  of  Congress  on  our  petition,  and, 
therefore,  must  unavoidably  settle  themselves  in  some 
other  quarter  which,  when  done,  the  idea  of  removing 
to  the  Ohio  country  will  probably  be  at  an  end  with 
respect  to  most  of  them.  Besides,  the  Commonwealth 
of  Massachusetts  have  come  to  a  resolution  to  sell  their 
eastern  country  for  public  securities,  and  should  their 
plan  be  formed  and  propositions  be  made  public  before 
we  hear  anything  from  Congress  respecting  our  petition 
and  the  terms  on  which  the  lands  petitioned  for  are  to 
be  obtained,  it  will  undoubtedly  be  much  against 
us  by  greatly  lessening  the  number  of  Ohio  asso 
ciates."  " 


31 

In  reply  to  this  Washington  wrote,   June    2d,    1784  : 

"  I  could  not  answer  your  favor  of  the  5th  of  April 
from  Philadelphia,  because  General  Knox,  having  mis 
laid,  only  presented  the  letter  to  me  in  the  moment  of 
my  departure  from  that  place.  The  sentiments  of  es 
teem  and  friendship  which  breathe  in  it  are  exceedingly 
pleasing  and  flattering  to  me,  and  you  may  rest  assured 
they  are  reciprocal. 

"  I  wish  it  was  in  my  power  to  give  you  a  more  favor 
able  account  of  the  officers'  petition  for  lands  on  the 
Ohio  and  its  waters,  than  I  am  about  to  do.  As  to 
this  matter  and  information  respecting  the  establish 
ment  for  peace,  were  my  inquiries,  as  I  went  through 
Annapolis,  solely  directed,  but  could  not  learn  that 
anything  decisive  had  been  done  in  either.  *  *  * 
Surely,  if  justice  and  gratitude  to  the  army  and  gen 
eral  policy  to  the  Union  were  to  govern  in  this  case, 
there  would  not  be  the  smallest  interruption  in  grant 
ing  its  request.  *  At  Princetown,  before  Con 
gress  left  that  place,  I  exerted  every  power  I  was 
master  of,  and  dwelt  upon  the  argument  you  have 
used,  to  show  the  propriety  of  a  speedy  decision. 
Every  member  with  whom  I  conversed  acquiesced  in 
the  reasonableness  of  the  petition.  All  yielded  or 
seemed  to  yield  to  the  policy  of  it,  but  plead  the 
want  of  cession  of  the  land  to  act  upon  :  this  is  made 
and  accepted,  and  yet  matters,  as  far  as  they  have  come 
to  my  knowledge,  remain  in  statu  quo" 

It  did  befall,  however,  that,  on  the  19th  day  of  April, 
Mr.  Jefferson  of  Virginia,  Mr.  Chase  of  Maryland,  and 
Mr.  Hovvell  of  Virginia,  "a  committee  appointed  to 
prepars  a  plan  for  the  temporary  government  of  the 
Western  territory,"  reported  a  substitute  for  the  Bland 
ordinance  of  the  preceding  year,  and  which,  largely 
amended,  presently  became  a  law.  Its  controlling  fea 
ture  was  the  following  provision  : 

"  Provided.  That  both  the  temporary  and  permanent 
governments  be  established  011  these  principles  as  their 
basis  : 


32 

"  1.  That  they  shall  forever  remain  a  part  of  the 
United  States  of  America. 

"  2.  That,  in  their  persons,  property  and  territory, 
they  shall  be  subject  to  the  Government  of  the  United 
States  in  Congress  assembled,  and  to  the  Articles  of 
Confederation,  in  all  those  cases  in  which  the  original 
States  shall  be  so  subject. 

"  3.  That  they  shall  be  subject  to  pay  a  part  of  the 
Federal  debts,  contracted  or  to  be  contracted,  to  be 
apportioned  on  them  by  Congress,  according  to  the 
same  common  rule  and  measure  by  which  apportion 
ments  thereof  shall  be  made  on  the  other  States. 

"  4.  That  their  respective  governments  shall  be  in 
republican  forms,  and  shall  admit  no  person  to  be  a 
citizen  who  holds  any  hereditary  title. 

"  5.  THAT,  AFTER  THE  YEAR  1800  OF  THE  CHRISTIAN 
ERA,  THERE  SHALL  BE  NEITHER  SLAVERY  NOR  INVOLUNTARY 
SERVITUDE  IN  ANY  OF  THE  SAID  STATES,  OTHERWISE  THAN 
IN  THE  PUNISHMENT  OF  CRIMES  WHEREOF  THE  PARTY  SHALL 
HAVE  BEEN  DULY  CONVICTED  TO  HAVE  BEEN  PERSONALLY 

GUILTY." 

This  is  the  first  appearance  of  these  immortal  words 
which  have  now^  such  transcendent  associations.* 

The  designation  "  involuntary  servitude  "  is  not,  as 
here  used,  a  mere  synonym  of  "  slavery."  It  was  meant 
to  preclude  the  enforcement  of  contracts  to  serve  for  a 


*  Jefferson  was  undoubtedly  their  author.  The  original  draft  of 
this  ordinance,  on  file  in  the  Department  of  State,  is  entirely  in  Jef 
ferson's  handwriting.  His  views  in  regard  to  slavery  are  forcibly  ex 
pressed  in  his  Notes  on  Virginia.  He  says  :  "  Can  the  liberties  of  a 
nation  be  thought  secure  when  we  have  removed  their  only  firm 
basis,  a  conviction  in  the  minds  of  the  people  that  these  liberties  are 
the  gift  of  God  ;  that  they  are  not  to  be  violated  but  with  His  wrath. 
Indeed,  I  tremble  for  my  country  when  I  reflect  that  God  is  just ; 
that  His  justice  cannot  sleep  forever;  that  considering  numbers, 
nature  and  natural  means  only,  a  revolution  of  the  wheel  of  for 
tune,  an  exchange  of  situation  is  among  possible  events,  that  it  may 
become  probable  by  supernatural  influence !  The  Almighty  has  no 
attribute  which  can  take  sides  with  us  in  such  a  contest."  He 
hoped  that  a  way  "  was  preparing,  under  the  auspices  of  Heaven, 
for  a  total  emancipation." 


33 

term  of  years,  or  for   life,  and    was   of   large   practical 
value  in  that  sense.* 

*  An  Act  of  the  Territory  of  Indiana,  passed  September  17th, 
1807,  and  continued  in  Illinois  after  that  Territory  was  made  sepa 
rate  from  Indiana,  provided  as  follows  : 

Sec.  1.  "It  shall  and  may  be  lawful  for  any  person,  being  the 
owner  or  possessor  of  any  negroes  or  mulattoes  of  and  above  the 
age  of  fifteen  years,  and  owing  labor  and  service  as  slaves  in  any 
of  the  States  or  Territories  of  the  United  States,  or  for  any  citizen 
of  the  said  States  or  Territories  purchasing  the  same,  to  bring  the 
said  negroes  and  mulattoes  into  this  Territory."  Sec.  2.  "The 
owner  or  possessor  of  any  negroes  or  mulattoes,  as  aforesaid,  and 
bringing  the  same  into  this  Territory,  shall,  within  thirty  days  after 
such  removal,  go  with  the  same  before  the  Clerk  of  the  Court  of 
Common  Pleas  of  the  proper  county,  and  in  the  presence  of  said 
Clerk,  the  said  owner  or  possessor  shall  determine  and  agree,  to 
and  with  his  or  her  negro  or  mulatto,  upon  the  term  of  years  which  the 
said  negro  or  mulatto  will  and  shall  serve  his  or  her  said  owner  or 
possessor,  and  the  said  clerk  is  hereby  authorized  and  required  to 
make  a  record  thereof,  in  a  book  which  he  shall  keep  for  that  pur 
pose."  Sec.  3.  "If  any  negro  or  mulatto,  removed  into  this  Terri 
tory,  as  aforesaid,  shall  refuse  to  serve  his  or  her  owner,  as  afore 
said,  it  shall  and  may  be  lawful  for  such  person,  within  sixty  days 
thereafter,  to  remove  the  said  negro  or  mulatto  to  any  place  which 
by  the  laws  of  the  United  States  or  Territory,  from  whence  such 
owner  or  possessor  may,  or  shall  be  authorized  to  remove  the 
same  "  (.«>). 

Repeated  litigations  were  had  under  this  act,  and  it  was  uni 
formly  held  invalid,  because  in  conflict  with  the  prohibition  of  the 
ordinance.  Something  of  the  same  kind  was  attempted  in  some  of 
the  Southern  States  immediately  after  the  war. 

Probably  the  idea  was  suggested  to  Mr.  Jefferson  by  the  custom 
at  that  time  prevalent  in  this  country  with  shipmasters  and  mer 
chants,  of  bringing  over  white  immigrants  under  contracts  to  serve 
for  a  term  of  years,  in  lieu  of  the  payment  of  passage  money. 
This,  in  its  turn,  is  now  to  some  extent  reproduced  among  us  by 
Italian  padrones  and  others. 

"  Conditional  servitude  under  indentures  or  covenants  had  from 
the  first  existed  in  Virginia.  Once,  at  least,  James  sent  over  con 
victs,  and  once,  at  least,  the  City  of  London  a  hundred  homeless 
children  from  its  streets.  The  servant  stood  to  his  master  m  the 
relation  of  a  debtor  bound  to  discharge  by  his  labor  the  costs  of 
emigration.  White  servants  came  to  be  a  usual  article  of  merchan 
dise.  They  were  sold  in  England  to  be  transported,  and  in  Vir 
ginia  were  to  be  purchased  on  shipboard."  Bancroft's  History  of 
the  United  States,  Vol.  /.,  p.  1,15. 


34 

That  intending  settlers  might  rely  upon  these  provis 
ions  as  irrevocable,  this  forerunner  of  the  ordinance 
went  on  to  provide  : 

"  That  all  the  preceding  articles  shall  be  formed  into 
a  charter  of  compact ;  shall  be  duly  executed  by  the 
President  of  the  United  States  in  Congress  assembled, 
under  his  hand  and  the  seal  of  the  United  States  ;  shall 
be  promulgated  and  shall  stand  as  fundamental  condi 
tions  between  the  thirteen  original  States  and  these 
newly  described,  unalterable  but  by  the  joint  consent 
of  the  United  States,  in  Congress  assembled,  and  of  the 
particular  State  within  which  such  alteration  is  pro 
posed  to  be  made." 

This  feature  is  fully  preserved  in  the  subsequent  Or 
dinance  of  1787. 

This  toleration  of  slavery  until  1800  the  committee 
reported  in  deference  to  the  situation  of  the  old  French 
families,  and  perhaps  some  others,  who  already  had 
slaves  within  the  territory,  and  were  protected  there  in 
holding  them  by  treaty  stipulations/' 

Even  this  prospective  exclusion  was  struck  out  in 
Committee  of  the  Whole,  on  motion  of  Mr.  Spaight,  of 
South  Carolina.  Thus  modified,  the  ordinance  passed 
Congress  and  became  a  law  April  23d,  1784. 

The  men  who  had  fought  so  many  years  for  a  free 
country,  and  who  proposed  to  make  the  total  exclusion 
of  slavery  an  essential  and  irrevocable  feature  of  the 


*  At  Vincennes,  on  the  Ohio,  at  this  time,  and  at  Cahokia,  on 
the  Mississippi,  nearly  opposite  St.  Louis  ;  at  Kaskasia,  thirty  miles 
southeast  of  St.  Louis,  and  at  Detroit  there  were  small  French  settle 
ments.  These,  with  a  few  families  who  claimed  Virginia  citizen 
ship,  made  up  in  all  about  three  thousand  people  other  than  the 
Indians  in  the  whole  of  that  vast  area.  Even  these  were  not  citizens 
of  the  United  States  :  and  the  majority  of  them  gradually  removed 
across  the  Ohio  to  "  Louisiana,"  or  to  Canada,  taking  their  slaves 
with  them. 


35 

Constitution  of  the  State  they  were  to  found,  had  no 
use  for  a  grant  of  governmental  powers  from  which  the 
power  to  exclude  slavery  was  entirely  withdrawn.  The 
ordinance  of  April  23d,  1784,  fell  flat,  and  no  attempt 
of  any  kind  was  ever  made  to  set  up  under  it  an  actual 
government.  It  was  a  dead  letter  on  the  statute 
book  until  it  was  replaced  by  the  renowned  Ordinance 
of  1787,  in  wliich  the  total  exclusion  of  slavery  was 
made  an  essential  and  irrevocable  feature. 

Years  afterwards,  the  Ohio  Company's  famous  agent, 
Kev.  Manasseh  Cutler,*  in  explaining  to  his  son  Judge 

*Rev.  Manasseh  Cutler,  LL.D.,  was  a  remarkable  man.  He 
was  a  clergyman,  but  lie  was  a  great  deal  more  :  a  lawyer,  a  phy 
sician,  an  educator,  a  politician,  a  man  of  affairs,  a  farmer,  and  a 
scientist ;  and  in  all  of  these  callings  he  did  good  work.  He  was 
born  in  Killingly,  Conn.,  on  May  30,  1742  ;  graduated  from  Yale 
College  in  1765,  and  admitted  to  the  Massachusetts  bar  in  1767. 
Being  attracted  to  the  work  of  the  Christian  ministry,  he  studied 
theology,  and  in  1771  was  ordained  as  pastor  of  a  Congregational 
society  in  Ipswich  Hamlet,  since  1793  known  as  the  town  of  Ham 
ilton,  Mass.  He  remained  with  this  society  until  his  death,  a 
period  of  more  than  half  a  century.  When  the  Revolutionary  War 
began  he  stirred  his  townsmen  with  rousing  words,  and  soon  there 
after  was  appointed  Chaplain  in  the  Army.  Towards  the  close  of 
the  war  he  studied  medicine,  that  he  might  minister  alike  to  the 
bodily  and  the  spiritual  needs  of  his  flock.  The  cause  of  his  inter 
est  in  the  Ohio  Company  is  explained  by  the  following  memoran 
dum,  preserved  in  his  handwriting  : 

"  At  this  meeting  by  ye  desire  of  Major  Sargent,  I  attended.  I 
had  suffered  exceedingly  in  ye  war,  and  after  it  was  over,  by  paper 
money  and  ye  high  price  of  articles  of  living,  my  salary  small  and 
family  large,  for  several  years  I  thought  ye  people  had  not  done  me 
justice,  and  I  meditated  leaving  them.  Purchasing  lands  in  a  new 
country  appeared  to  be  ye  only  thing  I  could  do  to  secure  a  living 
to  myself  and  family  in  that  unsettled  state  of  public  affairs.  I 
had  long  before  entertained  a  high  opinion  of  ye  lauds  in  ye  western 
country,  which  was  a  particular  inducement  to  attend  this  meeting. 
The  representations  and  plans  of  ye  country  gave  a  still  more 
favorable  idea,  and  I  determined  to  join  ye  association,  but  without 
ye  most  distant  thought  of  taking  an  active  part." 

McMaster,  in  his  history  of  the  people  of  the  United  States, 
writes  of  Cutler  at  this  period:  "He  had  been  bred  first  to  the 


30 

Epliraim  Cutler,  how  it  came  that  "  the  prohibition  of 
"  slavery  and  the  recognition  of  religion,  morality  and 

bar  and  then  to  the  ministry,  but  his  true  calling  was  politics.  He 
was  clear  of  head,  sound  of  judgment,  of  great  push  and  energy, 
and  in  the  pursuit  of  his  aims  not  over  careful  of  the  means  used. 
He  was  chosen,  therefore,  to  go  before  Congress  and  purchase  the 
land,  and  the  choice  could  not  have  fallen  on  a  better  man." 

The  words  of  Senator  Hoar,  spoken  at  the  Marietta  Centennial, 
are  even  more  "  fitly  chosen."  "  Manasseh  Cutler  was  probably 
the  fittest  man  on  the  Continent,  except  Franklin,  for  a  mission  of 
delicate  diplomacy.  Putnam  was  a  man  after  Washington's  pat 
tern  and  after  Washington's  own  heart.  Cutler  was  a  man  after 
Franklin's  pattern  and  after  Franklin's  own  heart.  He  was  the 
most  learned  naturalist  in  America,  as  Franklin  was  the  greatest 
master  in  physical  science.  He  was  a  man  of  consummate  prudence 
in  speech  and  conduct ;  of  courtly  manners  ;  a  favorite  in  the  draw 
ing-room  and  in  the  camp,  with  a  wide  circle  of  friends  and  corre- 
pondents  among  the  most  famous  men  of  his  time.  During  his 
brief  service  in  Congress  he  made  a  speech  on  the  Judicial  system, 
in  1803,  which  shows  his  profound  mastery  of  constitutional  princi 
ples.  It  fell  to  his  lot  in  1787  to  conduct  a  negotiation  second  only 
in  importance  in  the  history  of  his  Country  to  that  which  Franklin 
conducted  with  France  in  1778.  Never  was  embassador  crowned 
with  success  more  rapid  or  more  complete." 

In  1788  Cutler  made  a  journey  to  the  West.  He  was  nearly  a 
month  on  his  way  from  his  home  in  Massachusetts,  traveling  in  a 
sulky  to  the  new  settlement  on  the  Ohio.  He  had  considered  the 
matter  of  a  permanent  residence  at  Marietta  and  decided  against 
it ;  but  his  interest  in  the  new  country  was  very  great.  It  was  in 
teresting  to  him  as  a  naturalist,  as  a  patriot  and  as  a  religious  man. 
The  National  grants  of  land  for  educational  and  religious  purposes 
were  obtained  through  his  foresight  and  earnest  solicitation.  With 
him  also  the  establishment  of  a  university  was  "a  first  object,"  and 
"  lay  with  great  weight  on  his  mind." 

From  1801  until  1805  he  was  a  member  of  Congress,  declining 
re-election. 

He  was  a  member  of  many  scientific  bodies,  and  was  also  a  cor 
respondent  of  learned  men  in  all  parts  of  the  world.  An  early  taste 
for  astronomy,  and  especially  for  botany,  remained  with  him  as  long 
as  he  lived.  The  honorary  degree  of  Doctor  of  Laws  was  conferred 
upon  him,  in  1791,  by  Yale  College. 

"  Patriotism  glowed  in  his  heart;  whether  at  home  or  abroad 
his  mind  was  intent  on  projecting  great  and  good  plans,  consulting 
the  benefit  of  generations  to  come." 

He  died  at  his  home  in  Hamilton,  Mass.,  on  the  28th  of  July, 
1823. 


37 

"  knowledge  as  foundations  of  civil  government  were 
"  incorporated  into  tlie  Ordinance,  said,  '  I  was  acting 
"  for  associates,  friends  and  neighbors,  who  would  not 
"  embark  in  the  enterprise  unless  these  principles  were 
"  unalterably  fixed.'" 

In  June,  1785,  while  Congress  was  still  deliberating, 
we  find  Pickering  writing  about  the  "  plan  "  to  Eufus 
King,  afterwards  a  distinguished  citizen  of  New  York, 
United  States  Senator,  and  Minister  to  England, 
but  who  was  at  that  time  a  member  of  Congress 
from  Massachusetts.  It  will  be  remembered  that 
the  draft  which  Mr.  Jefferson  reported  proposed  the 
exclusion  of  slavery  only  from  and  after  the  year 
1800,  while  the  total  exclusion  of  slaverv  was  the 
purpose  of  the  petitioners  of  1783.  Hence,  early 
in  1785,  Pickering  writes  to  King  a  long  letter,  from 
which  the  following  is  condensed  : 

"  I  should  have  objected  .to  the  period  (A.  D.  1800) 
proposed  for  the  exclusion  of  slavery,  for  the  admis 
sion  of  it  for  a  single  day  or  an  hour  ought  to  have 
been  forbidden.  It  is  infinitely  easier  to  prevent  the 
evil  at  first  than  to  eradicate  or  check  it  at  any  future 
time.  For  God's  sake,  let  one  more  effort  be  made  to 
prevent  so  terrible  a  calamity." 

To  this  Mr.  King  replied  as  follows  : 

"NEW  YORK,  15th  April,  1785. 

'  The  best  return  in  my  power  to  make  you  for  your 
ingenious  communication  on  the  mode  of  disposing  of 
the  Western  Territory,  is  to  enclose  for  your  examina 
tion  the  form  of  an  ordinance  reported  to  Congress 
on  the  subject.  You  will  find  thereby  that  your  ideas 
have  had  weight  with  the  committee  who  reported  this 
ordinance,  and  I  have  only  to  add  that  I  shall  hold 
myself  particularly  obliged  by  your  further  communi 
cations  on  the  subject. 

"  I  likewise  enclose  you  the  report  of  a  committee 
on  a  motion  for  the  exclusion  of  slaverv  from  the  new 


38 

States.     Your  ideas  on    this    unjustifiable   practice  are 
so  just  that  it  would  be  impossible  to  differ  from  them." 

Mr.  King  here  refers  to  the  fact  that  at  his  instance 
the  Congress  had,  in  Committee  of  the  Whole,  adopted 
the  following  as  a  clause  to  be  reported  for  enactment 
as  an  amendment  to  the  ordinance  as  at  that  time  in 
force  : 

"  That  there  shall  be  neither  slavery  nor  involuntary 
servitude  in  any  of  the  States  described  in  the  resolve 
of  Congress  of  the  23d  of  April,  1784,  otherwise  than 
in  the  punishment  of  crimes  whereof  the  party  shall 
have  been  personally  guilty  ;  and  that  this  regulation 
shall  be  an  article  of  compact  and  remain  a  funda 
mental  principle  of  the  Constitution  between  the  thir 
teen  original  States,  and  each  of  the  States  described 
in  the  said  resolve  of  the  23d  of  April,  1784." 

This  was,  however,  never  taken  up  for  final  action, 
and  never  became  a  law.  About  this  time  Pickering 
bought  land  in  Pennsylvania  and  settled  there.  He 
does  not  figure  afterwards  as  one  of  the  associates. 

A  principal  cause  of  this  dilatory  course  was  the 
fact  that  the  deeds  of  cession,  by  Virginia  and  Massa 
chusetts,  stipulated  that  the  new  States  in  the  North 
west  Territory  should  not  exceed  in  area  one  hundred 
and  fifty  miles  square,  and  the  terms  of  this  require 
ment  had  by  resolution  of  Congress  been  accepted. 

In  Congress  and  out  of  it  there  existed  a  strenuous 
feeling  that  this  limitatation  was  unwise  and  would 
prove  most  unfortunate.  The  most  active  exponent  of 
this  feeling  wras  James  Monroe,  who  had  been  at  the 
pains  to  personally  visit  the  Northwest  Territory, 
after  which,  January  19th,  1786,  he  wrote  to  Thomas 
Jefferson  the  following  complimentary  description  of 
the  present  States  of  Ohio,  Indiana  and  Illinois : 


39 

"  A  great  part  of  the  territory  is  miserably  poor, 
especially  that  near  Lakes  Michigan  and  Erie  ;  and  that 
upon  the  Mississippi  and  Illinois  consists  of  extensive 
plains  which  have  not  had  from  appearances  and  will 
not  have  a  single  bush  on  them  for  ages.  The  dis 
tricts,  therefore,  within  which  these  fall,  will,  perhaps, 
never  contain  a  sufficient  number  of  inhabitants  to 
entitle  them  to  membership  in  the  Confederacy,  and  in 
the  meantime  the  people  in  them  will  be  governed  by 
the  resolutions  of  Congress,  in  which  they  will  not  be 
represented." 

This  feeling  led  Monroe  to  take  such  action  in  Con 
gress  that,  on  his  motion,  that  body,  March  24,  1786, 
resolved  : 

"  That  it  be  and  hereby  is  recommended  to  the 
Legislature  of  Virginia  to  take  into  consideration  their 
act  of  cession  and  revise  the  same  so  far  as  to  empower 
the  United  States  in  Congress  assembled  to  make  such 
a  division  of  the  territory  of  the  United  States  lying 
northerly  and  westerly  of  the  River  Ohio  into  distinct 
Republican  States,  not  more  than  five  nor  less  than 
three  as  the  situation  of  that  country  and  future  cir 
cumstances  may  require." 

It  is  not  to  be  overlooked,  however,  that  other  causes 
were  in  force,  contributing  at  least  to  defer  an  active 
movement  to  restore  the  Anti-Slavery  clause.  The  pe 
tition  itself  asks  only  that  "  whenever  the  Honorable 
"  Congress  shall  be  pleased  to  procure  the  aforesaid 
"  lands  of  the  natives,  they  will  make  provision  for  the 
"  location  and  survey  of  the  lands  ;  "  and  that  then  the 
grants  requested  may  be  made. 

No  further  attempt  was  made  to  amend  the  ordinance 
of  1784  until  April  26,  1787,  when  a  committee  com 
posed  of  Mr.  Johnson,  of  Connecticut ;  Mr.  Pinckney, 
of  South  Carolina  ;  Mr.  Smith,  of  New  York  ;  Mr. 
Dane,  of  Massachusetts,  and  Mr.  Henry,  of  Maryland, 
reported  to  Congress  what  was  doubtless  that  ordi- 


40 

nance  in  an  amended  form.  It  was  essentially  differ 
ent  from  the  Ordinance  of  1787,  and  it  contained  no 
provision  Avhatever  on  the  subject  of  slavery.  On  May 
10, 1787,  it  was  ordered  to  a  third  reading,  and  from 
that  time  remained  unmolested  until  July  6,  when,  as 
we  have  seen,  the  agent  of  the  Ohio  Company  of  Asso 
ciates  appeared  upon  the  floor.  The  "  total  exclusion 
of  slavery  "  as  "  essential  and  irrevocable  "  was  now, 
from  whatever  cause,  at  once  to  reappear.  Nine  days 
after  Dr.  Cutler's  arrival  Richard  Henry  Lee  wrote  to 
Washington,  enclosing  a  copy  of  the  Ordinance  of  1787, 
and  saying  :  "  I  have  the  honor  to  enclose  to  you  a  copy 
"  of  an  ordinance  that  we  have  just  passed  in  Congress 
"  for  establishing  a  temporary  government  beyond  the 
"  Ohio  as  a  measure  preparatory  to  a  sale  of  lands." 

The  Ohio  Company's  application  for  a  sale  of  land 
having  been  the  immediate  occasion  for  the  passage  of 
the  Ordinance,  it  is  worth  while  to  look  into  their  share 
in  securing  the  important  result  that  it  should  embrace 
the  anti-slavery  proviso  which  it  finally  included,  and 
which  has  proved  its  vital  clause. 

It  must  be  borne  in  mind  that  at  the  time  the  Ordi 
nance  was  passed  by  the  Congress  sitting  in  New 
York,  there  was  also  in  session,  in  Philadelphia, 
the  convention  which  framed  the  Constitution  of  the 
United  States.  The  qualification  of  the  anti-slavery 
clause  in  the  Ordinance,  providing  for  the  reclamation 
of  fugitive  slaves,  is  in  harmony  with  the  corresponding 
provision  of  the  Constitution  of  the  United  States,  and 
the  two  were  cotemporaneously  adopted.  Many  mem 
bers  of  Congress,  indeed  two  of  the  five  members  of 
the  committee  to  whom  at  an  earlier  date  had  been 
referred  the  original  memorial  of  the  Ohio  Company 


41 

presented  by  General  Parsons,  were  also  members  of  the 
Constitutional  Convention.  One  of  these  was  Eufus 
King,  on  whose  motion  the  provision  as  to  fugitive 
slaves  was  inserted  in  the  Constitution,  and  the  same 
whom  we  recall  as  having  at  Pickering's  instance  re 
ported  to  Congress  in  1785  an  anti-slavery  amendment 
to  the  resolutions  of  1784.  Under  these  circumstances 
any  evidence  tending  to  show  that  the  concurrent  posi 
tion  of  these  two  bodies  and  the  incorporation  with  the 
Ordinance  of  the  anti-slavery  proviso  was  the  result  of 
an  agreement  between  persons  who  were  members  of 
both  Congress  and  the  Convention  is  strongly  corrob 
orated  by  the  circumstances  of  the  case. 

The  other  member  of  the  committee  of  five,  to  whom 
was  referred  the  original  memorial  of  the  Ohio  Com 
pany,  was  James  Madison,  afterward  President  of  the 
United  States.  His  situation  certainly  enabled  him  to 
be  well  informed.  His  private  secretary,  while  Presi 
dent,  was  Edward  Coles  of  Virginia,  afterwards  Gover 
nor  of  Illinois,  a  man  of  great  worth  and  force  of 
character.  In  an  address  before  the  Pennsylvania  His 
torical  Society  in  1857,  on  the  history  of  the  Ordinance, 
Gov.  Coles  says : 

"  This  brings  to  my  recollection  what  I  was  told  by 
Mr.  Madison,  and  which  I  do  not  remember  ever  to 
have  seen  in  print.  The  old  Congress  held  its  sessions 
in  178V  in  New  York,  while  at  the  same  time  the  con 
vention  which  framed  the  Constitution  of  the  United 
States  held  its  sessions  in  Philadelphia.  Many  in 
dividuals  were  members  of  both  bodies,  and  thus  were 
enabled  to  know  what  was  passing  in  each — both  sitting 
with  closed  doors  and  in  secret  sessions.  The  dis 
tracting  question  of  slavery  was  agitating  and  retard 
ing  the  labors  of  both,  and  led  to  conferences  and  in 
tercommunications  of  the  members,  which  resulted  in  a 
compromise  by  which  the  northern  or  anti-slavery  por- 


42 

tion  of  the  country  agreed  to  incorporate  into  the  ordi 
nance  and  constitution  the  provisions  to  restore  fugi 
tive  slaves  ;  and  this  mutual  and  concurrent  action  was 
the  cause  of  the  similarity  of  the  provision  contained 
in  both,  and  had  its  influence  in  creating  the  great 
unanimity  by  which  the  ordinance  passed,  and  also  in 
making  the  Constitution  the  more  acceptable  to  the 
slave  holders." 

A  compromise  upon  the  basis  that  the  Ordinance 
should  provide  that  fugitive  slaves  found  within  the 
territory  should  be  returned  carried  with  it,  of  course,  a 
reciprocal  agreement  that  slavery  itself  should  be  ex 
cluded  by  the  Ordinance. 

In  harmony  at  least  with  such  an  agreement,  Con 
gress,  after  the  adoption  of  the  Constitution,  applied  to 
the  territory  south  of  the  Ohio  and  east  of  the  Mis 
sissippi  a  substantial  re-enactment  of  the  Ordinance  of 
1787,  but  without  the  anti-slavery  provision. 

The  anti-slavery  proviso,  however,  was  not  in  the 
Ordinance  (as  reported  by  the  committee).  It  was 
moved,  as  an  amendment,  by  Nathan  Dane  of  Massa 
chusetts,  and  was  unanimously  carried.  The  Ordinance 
was  thereupon  adopted,  with  one  dissenting  vote.  Mr. 
Dane  was  the  secretary  of  the  committee.  In  a  letter 
to  Rufus  King,  written  three  days  after  the  passage  of 
the  Ordinance,  he  gives  the  following  account  of  the 
passage  of  the  amendment  : 

"We  have  been  employed  about  several  objects,  the 
principal  of  which  have  been  the  Government  enclosed 
(the  ordinance)  and  the  Ohio  purchase  ;  former,  you 
will  see,  is  completed,  and  the  latter  will  probably  be 
completed  to-morrow.  We  tried  one  day  to  patch  up 

M s  system  of  W.  government — started    new  ideas 

and  committed  the  whole  to  Carrington,  Dane,  R.  H. 
Lee,  Smith  and  Kean.  We  met  several  times,  and  at 
last  agreed  on  some  principles — at  least  Lee,  Smith  and 
myself.  We  found  ourselves  rather  pressed.  The  Ohio 


43 

Company  appeared  to  purchase  a  large  tract  of  Federal 
lands — about  six  or  seven  millions  of  acres — and  we 
wanted  to  abolish  the  old  system  and  get  a  better  one 
for  the  government  of  the  country,  and  we  finally  found 
it  necessary  to  adopt  the  best  system  we  could  get. 
All  agreed  finally  to  the  enclosed  plan,  except  A.  Yates. 
He  appeared  in  this  case,  as  in  most  others,  not  to  un 
derstand  the  subject  at  all.  When  I  drew 
the  ordinance  (which  passed,  a  few  words  excepted,  as 
I  originally  formed  it)  I  had  no  idea  the  States  would 
agree  to  the  sixth  article,  prohibiting  slavery,  as  only 
Massachusetts,  of  the  Eastern  States,  was  present,  and 
therefore  omitted  it  in  the  draft ;  but,  finding  the  House 
favorably  disposed  on  this  subject,  after  we  had  com 
pleted  the  other  parts,  I  moved  the  article,  which  was* 
agreed  to  without  opposition." 

Mr.  Dane  is  here  writing  to  his  colleague  from  Mas 
sachusetts,  who  had  been  a  member  of  the  Committee, 
about  that  feature  of  the  Committee's  report  which 
would  naturally  most  interest  Mr.  King.  He  explains 
that  they  "  had  agreed  on  some  principles,"  but  that 
in  drawing  the  report,  he  had  at  first  omitted  this 
feature,  having  no  idea  that  Congress  would  accept  it. 
Afterwards,  finding  himself  mistaken  as  to  the  dispo 
sition  of  the  House,  he  moved  it  as  an  amendment 
and  it  was  unanimously  adopted. 

At  the  time,  of  which  he  speaks,  Lee  and  Carrington 
were  both  present  in  Congress.  Lee  certainly  knew 
what  had  been  agreed  on  in  Committee.  Carrington 


*The  original  of  the  committee's  reports  is  preserved  in  the 
Library  of  Congress.  One  leaf,  printed  on  both  sides,  contains  the 
whole.  Slight  alterations,  in  manuscript,  have  been  identified  as  in 
Grayson's  handwriting.  The  report  as  printed  does  not  include  the 
sixth  article,  prohibiting  slavery  and  providing  for  the  return  of 
fugitive  slaves.  There  is,  however,  on  the  second  page,  pasted  to 
the  edges  of  the  leaf,  a  piece  of  foolscap  paper  on  which  the  sixth 
article  is  written  out  in  full,  in  the  handwriting  of  Nathan  Dane. 


44 

certainly,  and  probably  Lee,  were  warmly  in  favor  of  the 
exclusion  of  slavery,  and  both  of  them  doubtless  were 
familiar  with  the  agreement  which  Madison  afterwards 
related  to  Governor  Coles.  Their  presence  makes  it 
not  hard  to  account  for  Mr.  Dane's  being  suddenly 
better  informed,  and  for  his  motion  to  restore  to  the 
report  what  he  had  omitted  from  it. 

While  these  suggestions  tend  to  show  that  the  con 
trolling  influence  which  determined  the  presence  and 
complexion  of  the  anti-slavery  proviso  moved  upon  a 
broader  plane  than  the  mere  views  or  influence  of  the 
Ohio  Company,  it  is  well  to  remember  that  the  com 
pany's  application  was  nevertheless  the  immediate  oc 
casion  of  the  passage  of  the  Ordinance.  Passed  as  a 
measure  preparatory  to  a  sale  to  them,  their  views  and 
wishes  naturally  entered  into  the  deliberations  by 
which  it  was  framed.  When  these  are  traced  out,  we 
are  permitted  to  -feel  that  the  larger  and  control 
ling  influence  Avhich  I  have  mentioned  allowed  itself 
to  be  led  by,  and  to  give  its  sanction  to  the  initiative  of 
the  company.  Dr.  Cutler,  their  agent,  has  left  behind 
him  a  dianr  at  once  comprehensive  and  specific.  On 
the  25th  of  June  he  w7as  in  Boston  preparing  to  set  out 
for  New  York.  Among  the  events  of  that  day,  he  chron 
icles  :  "  Conversed  with  General  Putnam.  Keceived 
"  letters.  Settled  the  principles  on  wThich  I  am  to  con- 
"  tract  with  Congress  for  lands  for  account  of  the  Ohio 
"  Company."  Dr.  Cutler's  reference  long  afterwards, 
in  conversation  with  his  son,  to  these  same  "  principles," 
has  been  related  already.  Having  arrived  at  New 
York,  and  as  we  have  seen,  been  introduced  to  a  num 
ber  of  members  on  the  floor  by  Colonel  Carrington 
of  Virginia,  he  writes:  "Delivered  my  petition  for 


45 

"  purchasing  lands  for  the  Ohio  Company,  and  pro- 
"  posed  terms  and  conditions  of  purchase.  A  com- 
"  mittee  was  appointed  to  agree  on  terms  of  negotia- 
"  tion,  and  report  to  Congress."  Doubtless  what  is 
here  mainly  referred  to  is  conditions  of  price,  pay 
ments,  location,  subdivisions  and  the  like  ;  but  the 
record  fully  discloses  that  this  committee  was  also 
formally  charged  with  the  reporting  of  an  Ordinance 
for  Government  as  a  preparatory  measure,  and  that  the 
"  principles  "  were  fully  considered  between  the  com 
mittee  and  the  company's  agent. 

Gray  son  was  at  that  time  Chairman  pro  tempore  of 
Congress.  The  committee  appointed  by  him  consisted 
of  Carrington,  Dane,  K.  H.  Lee,  Kean  of  South  Caro 
lina,  and  Smith  of  New  York.  Of  Gray  SOD,  and  of 
this  committee,  Cutler  writes  :  "  Grayson,  Carrington 
"  and  Lee  are  certainly  my  warm  advocates."  Car 
rington  was  afterwards  a  shareholder  in  the  Ohio  Com 
pany.  To  this  committee,  July  9,  was  referred  the 
Ordinance  which  on  May  10th  had  been  ordered  to  a 
third  reading,  but  had  not  since  been  taken  up.  Cutler 
now  writes  under  date  of  July  10th  : 

"  As  Congress  was  now  engaged  in  settling  the  form 
of  government  for  the  Federal  Territory,  for  which  a 
bill  had  been  prepared  and  a  copy  sent  to  me,  with 
leave  to  remark  upon  and  to  propose  amendments,  and 
which  I  had  taken  the  liberty  to  remark  upon  and  to 
propose  several  amendments,  I  thought  this  the  most 
favorable  opportunity  to  go  on  to  Philadelphia.  Ac 
cordingly,  after  I  had  returned  the  bill  with  my  obser 
vations,  I  set  out  at  7  o'clock  and  crossed  North  Kiver 
to  Panlus  Hook." 

Not  more  is  certainly  known  as  to  the  scope  of  these 
amendments  than  has  been  already  stated,  except  that 


46 

Dr.  Cutler  left  among  his  papers  a  copy  of  the  Ordi 
nance,  printed  on  a  sheet  on  the  margin  of  which  is 
written,  "  that  Mr.  Dane  requested  Dr.  Cutler  to  sug- 
"  gest  such  provisions  as  he  deemed  advisable,  and 
"  that  at  Dr.  Cutler's  instance  was  inserted  what  relates 
"  to  religion,  education  and  slavery."* 

Three  days  later  the  Ordinance  was  enacted.  Dr. 
Cutler  did  not  see  it  until  July  19th  on  his  return 
from  Philadelphia.  He  then  writes  : 

"  July  19th.  Called  on  members  of  Congress  very 
early  in  the  morning,  and  was  furnished  with  the 
ordinance  establishing  a  government  in  the  Western 
Federal  Territory.  It  is.  in  a  degree,  new  modeled. 
The  amendments  1  proposed  have  (dl  been  made  except 
one,  and  that  is  better  qualified.  It  was  that  we  should 
not  be  subject  to  continental  taxation,  unless  we  were 
entitled  to  a  full  representation  in  Congress.  This 
could  not  be  fully  obtained  ;  for  it  was  considered  in 
Congress  as  offering  a  premium  to  emigrants.  They 


*  Temple  Cutler,  of  Hamilton,  Mass.,  writing  September  29, 
1849,  to  Judge  Cutler,  of  Ohio  (botli  sons  of  Dr.  Cutler),  and  speak 
ing  of  the  interest  in  New  England  on  the  subject  of  the  Ordinance 
of  1787,  says:  "  Hon.  Daniel  Webster  is  now  convinced  that  the 
man  whose  foresight  suggested  some  of  its  articles  was  our 
father." 

Judge  Ephraim  Cutler,  on  November  24th,  1849,  wrote  as  fol 
lows  :  •'  I  visited  my  father  at  Washington  during  the  last  session 
he  attended  Congress.  In  his  boarding-house  he  occupied  a  room 
with  the  reverend  gentleman  who  represented  Hampshire  and  the 
Connecticut  counties,  whose  name  I  have  forgotten.  We  were  in 
conversation  relative  to  the  political  concerns  of  Ohio,  the  ruling 
parties  and  the  effects  of  the  (Ohio)  Constitution  in  the  promotion 
of  the  general  interest ;  when  he  observed  that  he  was  informed 
that  I  had  prepared  that  portion  of  the  Ohio  Constitution  which 
contained  the  part  of  the  Ordinance  of  July,  1787,  which  prohibited 
slavery,  he  wished  to  know  if  it  was  a  fact.  On  my  assuring  him 
it  was,  he  observed  that  he  thought  it  a  singular  coincidence,  as  he 
himself  had  prepared  that  part  of  the  Ordinance  while  he  was  in 
New  York  negotiating  the  purchase  of  the  lands  for  the  Ohio  Com 
pany." 


47 

have  granted  us  representation,  with  the  right  of 
debating,  but  not  of  voting,  upon  our  being  first 
subject  to  taxation." 

It  is  not  easy  to  reconcile  this  language,  and  the  fact 
that  he  evidently  found  nothing  in  the  Ordinance  by 
which  he  was  surprised,  with  any  other  hypothesis 
than  that  the  anti-slavery  amendment  was  one  of  those 
which  he  had  himself  proposed. 

Even  the  action  of  Congress,  making  the  Ordinance 
a  law,  declaring  its  provisions  also  to  be  articles  of 
compact,  was  insufficient  of  itself.  What  it  still  needed 
was  life,  the  power  that  grasps  and  that  assimilates. 
That  power  came  from  the  men  who  bore  into  the 
wilderness  this  Ark  of  a  New  Covenant,  and  set  up 
there  their  Temple  of  New  Institutions  in  which  it  was 
enshrined.  From  that  spot,  and  by  their  aid,  it  grasped 
and  held  and  fashioned  all  those  germs  of  great  new 
Commonwealths,  which  afterwards  grew  up  within  the 
area  of  its  jurisdiction  and  have  given  to  it  results  of 
transcendent  value. 

I  must  here  ask  you  to  distinguish  between  two 
matters  to  which  Dr.  Cutler's  efforts  were  directed. 
One  was  the  settlement  of  terms  and  negotiation  of  a 
purchase  of  the  lands  which  the  Ohio  Company  desired 
to  obtain.  The  other  was  the  enactment  by  Congress 
of  an  Ordinance  which  should  provide  a  plan  of  govern 
ment  acceptable  to  the  Associates,  and  which  should 
take  the  place  of  those  provided  by  the  Ordinance  or 
resolutions  of  1784,  the  one  which  on  that  day  had  be 
come  a  law,  minus  that  anti-slavery  feature  which  Mr. 
Jefferson  had  originally  incorporated  with  it.  The  Or 
dinance  of  1787  was  this  substitute,  and  as  we  here 


48 

see  was  adopted  "  as  a  measure  preparatory  to  a  sale 
of  lands." 

This  preparatory  measure,  an  indispensable  prereq 
uisite,  being  achieved,  Dr.  Cutler  indefatigably  pushed 
his  negotiation  with  Congress  for  a  purchase  of  public 
lands,  and  on  July  23d  a  resolution  passed  approving 
a  sale  to  the  associates  of  a  tract  comprising  about  five 
millions  of  acres  *  in  the  southwest  portion  of  the  tract 
described  in  the  petition  of  1783,  and  being  in  extent 
about  one-fourth  of  that  tract.  It  was  not,  however, 
until  July  27th  that  what  he  regarded  as  of  vital  im 
portance  in  the  terms  of  purchase  was  by  a  subsequent 
resolution  adjusted  to  his  liking.  The  precise  bounda 
ries  were  as  follows  : 

Bounded  by  the  Ohio  from  the  mouth  of  the  Scioto 
to  the  intersection  of  the  western  boundary  of  the 
seventh  range  of  township,  now  surveying  ;  thence  by 
the  said  boundary  to  the  northern  boundary  of  the 
tenth  township  from  the  Ohio  ;  thence  by  a  due  west 
line  to  the  Scioto  ;  thence  by  the  Scioto  to  the  be 
ginning. 

That  is  to  say,  beginning  at  Portsmouth  on  the  Ohio, 
thence  up  that  stream  to  a  short  distance  above  Mari- 


*  The  Ohio  Company's  first  application,  presented  by  Dr.  Cutler 
on  July  6th,  was  for  the  purchase  of  one  and  a  half  million  acres, 
and  the  purchase  as  first  passed,  July  19th,  contemplated  no  more 
than  that.  But,  on  July  20th,  Col.  Duer,  Secretary  to  the  Treasury 
Board,  made  a  secret  proposition  to  Dr.  Cutler  to  enlarge  the  con 
tract  and  take  in  another  company,  offering  him  generous  condi 
tions  to  accomplish  the  business  for  them.  This  resulted  in  a  con 
tract  for  "  near  5,000,000  of  acres  of  land,  amounting  to  three  mil 
lions  and  a  half  of  dollars,;  one  million  and  a  half  of  acres  for  the 
Ohio  Company,  and  the  remainder  for  a  private  speculation  in 
which  many  of  the  principal  characters  in  America  are  concerned  " 
(Cutler's  Life,  &c.,  I.,  295,  305). 


49 

etta  ;  thence  north  about  half  way  to  Lake  Erie ;  thence 
west  to  a  point  somewhat  northwest  from  Columbus  ; 
thence  southeast  to  Portsmouth  again. 

Of  the  whole  tract  it  was  understood  that  the  Ohio 
Company  of  Associates  would  purchase  for  itself  one 
and  a  half  million  acres.  The  rest  it  was  understood 
would  be  taken  by  "  some  of  the  principal  characters 
of  America  who  had  become  interested  in  the  scheme." 
Without  this  concession  to  "some  of  the  principal 
characters  in  America,"  says  Dr.  Cutler,  Congress 
would  not  have  approved  the  sale.  The  resolution  of 
July  23d  fixed  the  purchase  price  at  "  one  dollar  an 
acre,  payable  in  specie,  loan  office  certificates  reduced 
to  specie  value,  or  certificates  of  liquidated  debts  of  the 
United  States "  at  par.  These  last  were  the  "  final 
certificates  "  paid  to  the  officers  at  Newburgh  in  1783. 
At  the  time  the  sale  was  authorized  they  were  worth 
but  a  few  shillings  in  the  pound.  Their  actual  value, 
with  abatements  and  donations  authorized  by  the  reso 
lution,  reduced  the  cost  of  the  lands,  in  current  funds, 
to  about  ten  cents  an  acre.  Hence,  the  interest  in  the 
scheme  of  "  some  of  the  principal  characters  in 
America."  Suffice  it  to  say  that  these  last  soon  tired 
of  their  bargain  and  did  not  complete  their  purchase.* 


*  What  the}r  did  do  has,  I  think,  been  fairly  told  in  Howe's 
"  Historical  Collections  of  Ohio :  " 

"  A  contract  was  made  for  a  purchase  Of  a  part  of  the  lands  in 
cluded  in  the  Ohio  Company's  purchases.  Plots  and  descriptions 
of  the  land  contracted  for  were,  however,  made  out,  and  Joel 
Barlow  was  sent  as  an  agent  to  Europe  to  make  sales  for  the  benefit 
of  the  company,  and  sales  were  effected  of  parts  thereof  to  com 
panies  and  individuals  in  France.  On  February  19th,  1791,  two 
hundred  and  eighteen  of  these  purchasers  left  Havre  de  Grace  in 
France  and  arrived  in  Alexander,  D.  C.,  on  the  3d  of  May  follow- 


50 

After  the  passage  of  this  Second  Ordinance,  the  Asso 
ciates  were  allowed  three  months  in  which  to  prepare 
for  the  first  payment  on  their  lands,  and  on  the  27th  of 
October  their  contract  was  finally  closed,  covering  one 
and  a  half  million  acres.  They  paid  down  in  "  final  cer 
tificates  "  five  hundred  thousand  dollars.  For  this  they 
received  immediate  possession  (with  power  to  improve 
and  cultivate)  of  seven  hundred  and  fifty  thousand 
acres.  They  were  to  pay  as  much  more  within  one 
month  of  the  completion  of  the  survey,  and  there 
upon  to  have  a  clear  title  to  the  whole.  The  price 
per  acre  was  determined  by  the  rate  paid  at  the 
purchase  of  the  land.  Congress  had  authorized  the 
Board  of  Treasury  to  sell  at  one  dollar  per  acre  sub 
ject  to  a  reduction  of  one-third  for  bad  lands.  The 
Board  of  Treasury,  upon  this  authority,  sold  to  the 
Ohio  Company  a  million  and  a  half  acres  of  land  for 
one  million  dollars.  It  was  also  agreed  that  within 
the  tract,  and  in  addition  to  it,  two  entire  townships 
of  six  miles  square  should  be  reserved  for  the  estab 
lishment  of  a  University  ;  for  common  school  purposes, 
section  No.  16  (640  acres),  in  each  township  ;  "for  the 
purposes  of  religion,"  section  No.  29  in  each  township  ; 
and,  to  be  subject  to  future  disposition  by  the  United 

ing.  During  their  passage  two  were  added  to  their  number.  On 
their  arrival  they  were  told  that  the  Scioto  Company  owned  no  land. 
The  agent  insisted  that  they  did,  and  promised  to  secure  to  them 
good  titles  thereto.  *  *  *  When  they  arrived  at  Marietta  about 
fifty  of  them  landed.  The  rest  of  the  company  proceeded  to  Galli- 
apolis,  which  was  laid  out  about  that  time,  and  were  assured  by  the 
agent  that  the  place  lay  within  their  purchase.  Every  effort  to 
secure  titles  to  the  lands  they  had  purchased  having  failed,  an  ap 
plication  was  made  to  Congress,  and  in  June,  1798,  a  grant  was 
made  to  them  of  a  tract  of  land  on  the  Ohio  above  the  mouth  of  the 
Scioto  River,  which  is  called  the  '  French  Grant.'  " 
Here  is  material  for  a  romance. 


51 

States  in  each  township,  sections  Nos.  8,  11  ami  26. 
In  negotiating  their  contract,  the  agents  of  the  Ohio, 
Company  had  expressly  stipulated  that  the  University 
lands  should  be  included  in  the  same  conveyance  with 
the  very  first  tract  which  the  company  should  pay  for ; 
"  for  to  fix  it  in  the  centre  of  the  proposed  purchase 
"  might  too  long  defer  the  establishment." 

Their  agent  having  thus  completed  the  purchase, 
and  secured  for  them  the  plan  of  government  they 
wished,  the  "  Ohio  Company,"  as  they  had  now  come  to 
be  called,  held  further  meetings  at  Brackett's  Tavern, 
Boston,  on  the  21st  and  23d  of  November,  1787.  At 
the  first  was  adopted  a  plan  for  starting  a  town  at 
the  mouth  of  the  Muskingum,  and  for  allotment  of 
town  lots  and  lands  in  severalty.  At  the  second,  the 
engineers  and  boat  builders  were  directed  to  proceed 
to  the  headwaters  of  the  Ohio,  and  there  during 
the  winter  build  boats  in  which  the  settlers  in  a 
body  might  in  the  spring  descend  the  Ohio  to  the 
mouth  of  the  Muskingum.  The  next  meeting  was 
held  at  Rice's  Tavern,  Providence,  Khode  Island. 
At  that  meeting  the  Rev.  Dr.  Cutler,  Col.  May  and 
Major  HafiBeld  White  were  appointed  a  committee 
"  to  consider  and  report  upon  the  expediency  of 
employing  some  suitable  person  as  a  public  teacher 
at  the  settlement  now  making  by  the  Ohio  Company." 
They  reported  in  favor  of  the  measure,  and  the  Rev. 
Daniel  Story  was  appointed.  The  engineers  and 
boat  builders,  twenty-two  men,  started  from  Danvers, 
Mass.,  in  December,  1787,  under  charge  of  Major 
Haffield  White.*  They  arrived  quite  late  in  January, 

*  One  detachment  of  the  party  came  to  Danvers  from  Ipswich 
in  a  body.     Dr.  Cutler  himself  supervised  Iheir  departure,  and  one 


52 

1788,  at  Surarell's  Ferry,   on  the  Yougliioghenj,  about 
thirty  miles  above  Pittsburgh. 

Meantime,  in  the  same  month,  the  rest  of  the  party 
met  at  Hartford,  and  on  January  1st,  1788,  began  their 
march,  in  charge  of  General  Rufus  Putnam,  as  Director 
General  of  the  Expedition.  The  second  in  command 
was  Col.  Ebenezer  Sproat,  who  was  also  one  of  the 


of  his  sons  was  among  them,  Jervis  Cutler.  Another  son,  Temple 
Cutler,  has  left  a  graphic  account  of  the  departure.  Dr.  Cutler's 
diary  has  this  entry: 

"  Mon.,  Dec.  3.  This  morning  a  part  of  the  men  going  to  the 
Ohio  met  here  two  hours  before  day.  I  went  on  with  them  to 
Danvers.  The  whole  joined  at  Major  White's.  Twenty  men, 
employed  by  the  company,  and  four  or  five  on  their  own  expense, 
marched  at  eleven  o'clock.  This  party  is  commanded  by  Major 
White  [Haffleld  White,  a  native  of  Dauvers].  Captain  Putnam 
took  the  immediate  charge  of  the  men,  wagons,  &c.  Jervis  went 
off  in  good  spirits.  He  is  well  fitted  for  the  journey." 

The  reminiscence  of  Temple  Cutler,  Dr.  Cutler's  youngest  son, 
is  as  follows  : 

"  The  little  band  of  pioneers  assembled  at  the  house  of  Dr. 
Cutler,  in  Ipswich,  Mass.,  on  the  3d  day  of  December,  1787,  and 
there  took  an  early  breakfast.  About  the  dawn  of  day  they 
paraded  in  front  of  the  house,  and,  after  a  short  address  from  him, 
full  of  good  advice  and  hearty  wishes  for  their  happiness  and 
prosperity,  the  men  being  armed,  three  volleys  were  fired,  and  the 
party  (one  of  whom  was  his  son  Jervis,  aged  19)  went  forward, 
cheered  heartily  by  the  bystanders.  Dr.  Cutler  accompanied  them 
to  Danvers,  where  he  placed  them  under  command  of  Major 
Haffield  White  and  Captain  Ezra  Putnam,  He  had  prepared  a 
large  and  well-built  wagon  for  their  use,  which  preceded  them 
with  their  baggage.  This  wagon,  as  a  protection  from  cold  and 
storm,  was  covered  with  black  canvas,  and  on  the  sides  was  an 
inscription  in  white  letters,  I  think,  in  these  words,  '  For  the  Ohio 
at  the  Muskingum^  which  Dr.  Cutler  painted  with  his  own  hand. 
Although  I  was  then  but  six  years  old,  I  have  a  vivid  recollection 
of  all  these  circumstances,  having  seen  the  preparations  and  heard 
the  conversations  relative  to  this  undertaking.  I  think  the 
weather  was  pleasant  and  the  sun  rose  clear.  I  know  I  almost 
wished  I  could  be  of  the  party  then  starting,  for  I  was  told  we 
wrere  all  to  go  as  soon  as  preparation  wras  made  for  our  reception." 
Life  of  Rev.  Manasseh  Cutler,  Vol.  L,  pp.  329,  330. 


53 

signers  of  the  petition  of  1783.  The  snow  in  the 
Alleghenies  was  so  deep  that  they  built  sleds  for  the 
transportation  of  their  baggage.  They  had  marched  in 
winter  time  before — perhaps  they  had  crossed  the 
Delaware  with  Washington ;  and  they  pushed  on. 
About  the  middle  of  February  they  joined  the  boat- 
builders  at  Sumrell's  Ferry. 

Just  at  this  time,  February  7th,  1788,  Washington 
wrote  to  Lafayette  that 

"  the  spirit  of  emigration  to  the  western  country  is 
very  predominant.  Congress  have  sold  in  the  year  past 
a  pretty  large  quantity  of  land  on  the  Ohio  for  public 
securities,  and  thereby  diminished  the  domestic  debt 
considerably.  Many  of  your  military  acquaintances, 
such  as  Generals  Parsons,  Varnum  and  Putnam ; 
Colonels  Tucker,  Sproat  and  Sherman,  with  many 
more,  propose  to  settle." 

June  19th,  1788,  he  wrote  to  Eichard  Henderson : 

"  No  colony  in  America  was  ever  settled  under  such 
favorable  auspices  as  that  which  has  just  commenced 
at  Muskingum.  Information,  property  and  strength 
will  be  its  characteristics.  I  know  many  of  the  settlers 
personally,  and  there  never  were  men  better  calculated 
to  promote  the  welfare  of  such  a  community." 

Mr.  Cutler  says  that  when  Lafayette,  in  1825,  arrived 
at  Marietta,  he  inquired,  "  Who  were  the  first  adven 
turers  to  settle  here  ?  " 

On  being  told,  he  said :  "  I  knew  them  well.  I  saw 
them  fight  the  battles  of  their  country  at  Rhode  Island, 
Brandywine,  Yorktown  and  many  other  places.  They 
were  the  bravest  of  the  brave.  Better  men  never  lived." 

By  the  last  of  March  the  boats  deemed  necessary  were 
completed.  They  were,  a  large  boat  forty-five  feet 
long  and  twelve  feet  wide,  a  flat  boat  and  three  canoes. 


54 

The  large  boat  was  roofed  over  and  made  bullet-proof, 
as  a  refuge  from  the  Indians  if  need  be.  For  some 
years  afterwards  it  served  a  useful  purpose  for  safe 
transportation  to  and  from  the  mouth  of  the  Mus- 
kirigum.  To  this  largest  boat,  the  barge,  was  given  the 
name  "  Union  Galley."  It  seems  a  dull  mind's  eye 
that  does  riot  see  that  as  the  true  freight  of  the  orig 
inal  "  Mayflower  "  was  the  "  Compact  "  adopted  in 
her  cabin  "  for  our  better  ordering  and  preservation  to 
"  enact,  constitute  and  frame  such  just  and  equal  laws, 
"  from  time  to  time,"  so,  of  this  "Union  Galley,"  pro 
phetically  named,  as  we  shall  hereafter  see,  the  true 
burden  which  she  bore  was  the  Ordinance  of  1787, 
with  its  "  Articles  of  Compact,"  and  chief  among  them 
that  there  should  be  "  neither  slavery  nor  involuntary 
servitude  except  for  crime."  As  to  each  of  these  in 
cidents,  the  things  that  were  not  seen  have  proved  to 
be  the  things  that  are  eternal. 

The  party  left  Sumrell's  Ferry  on  April  1st,"  1788, 
and  went  down  the  Ohio — some  fifty  men  in  all. 
Meeting  with  no  interruption,  they  arrived  on  April 
7th  at  the  mouth  of  the  Muskingum.  They  at  once 
commenced  building  a  block  house,  and  laying  out 
a  town.  They  called  the  settlement  Marietta,  in  honor 
of  Marie  Antoinette,  and  in  memory  of  her  sympathy 
extended  to  them  in  the  Revolution.  In  July  they 
were  joined  by  the  officers  provided  for  by  the  Ordi 
nance  of  1787,  who  had  been  appointed  by  Con 
gress  in  New  York,  October  5,  1787.  They  were 
the  Governor,  General  St.  Clair,  who  had  been 
President  of  the  Continental  Congress;  the  Sec- 

*  April  2d  is  the  date  commonly  given.  Gen.  Putnam's  diary  is 
authority  for  April  1st. 


55 

retary,  Major  Sargent;  and  Generals  Parsons  and 
Varimm,  two  of  the  three  Judges.  The  third  Judge, 
Major  John  Armstrong,  had  declined  his  appoint 
ment.  On  July  18th  the  Government  of  the  Northwest 
Territory  was  inaugurated  by  the  proclamation  of  the 
Governor.  It  will  be  observed  that  all  of  these  ap 
pointees  were  ex-officers  of  the  Continental  Army. 

It  is  interesting  to  look  back  at  these  four  or  five 
men  assuming  thus  in  the  name  of  the  United  States, 
authority  over  a  territory  which  extended  from  Penn 
sylvania  and  Virginia  to  the  Mississippi  Kiver,  and  from 
the  Ohio  to  the  Lakes.  They  were  without  troops, 
treasury  or  legislature  ;  they  could  scarcely  have  main 
tained  a  single  bailiff.  The  whole  region  was  in  con 
trol  of  great  tribes  of  Indians  who  were  unsubdued. 

There  could  scarcely  be  said  even  to  be  then  any 
United  States.  The  present  Constitution  had  not 
been  fully  ratified  by  the  States,  and  the  Articles  of 
Confederation  which  were  in  force  were  but  a  rope  of 
sand.  The  Federal  Government  had  not  been  able 
even  to  pay  these  very  men  their  dues  for  services  in 
war.  Their  faith  was  all  that  they  and  their  associates 
had.  It  proved,  as  faith  so  often  does,  to  be  enough, 
when  coupled  with  endeavor. 

From  this  beginning  of  established  government  the 
progress  of  settlement  was  rapid.  In  August,  1788,  the 
colony  at  Marietta  was  increased  by  the  arrival  of  eight 
families.  It  now  numbered  one  hundred  and  thirty- 
two  men,  besides  some  women  and  children.  In  Octo 
ber  John  Cleves  Symm.es  purchased  from  the  United 
States  a  million  acres  fronting  on  the  Ohio,  between 
the  Little  and  Great  Miami  rivers.  Thjs  gentleman 
had  been  Chief-Justice  of  New  Jersey,  and  was  after- 


56 

wards  appointed  by  Congress  one  of  the  Judges  of 
the  Northwest  Territory  vice  John  Armstrong,  who 
declined.  Three  settlements  were  made  upon  this 
tract  in  the  winter  of  1788  and  1789,  one  of  them  being 
the  first  beginnings  of  the  City  of  Cincinnati.  The 
Ohio  River  was  the  highway  of  these  travelers  and 
their  vehicles  were  flatboats.  In  the  year  1796,  one 
thousand  of  these  "broad-horns,"  as  they  were  called, 
passed  down  the  river  to  what  is  now  Ohio  and  In 
diana.* 

The  number  of  these  settlers  grew  until,  in  1803,  de 
spite  a  dreadful  Indian  war  lasting  from  1790  until  1795, 
the  eastern  division  of  the  Northwest  Territory  was  in 
readiness  to  be,  and  was,  admitted,  as  a  State.  There 


*Flint,  himself  a  pioneer,  in  his  "  Indian  Wars  of  the  West,"  thus 
speaks  of  early  emigration  : 

"  The  writer  of  this  distinctly  remembers  the  wagon  that  car 
ried  out  a  number  of  adventurers  from  the  Counties  of  Essex  and 
Middlesex  in  Massachusetts,  on  the  second  emigration  to  the  woods 
of  Ohio.  He  remembers  the  black  canvas  covering  of  the  wagon  ; 
the  white  and  large  lettering  in  capitals  '  To  Marietta  on  the  Ohio  ! ' 
He  remembers  the  food  which,  even  then,  the  thought  of  such  a 
distant  expedition  furnished  to  his  imagination.  Some  twenty  emi 
grants  accompanied  the  wagon." 

The  older  States  looked  with  ill-favor  on  this  emigration.  They 
were  as  yet  but  sparsely  settled,  and  besides  had  lands  within  their 
own  limits  to  sell.  The  criticism  they  experienced  induced  the 
emigrants  to  justify  themselves  by  coloring  their  reports  of  their 
experience.  A  contest  sprang  up  and  families  differed  among 
themselves  as  to  the  wisdom  of  those  members  who  joined  the 
movement. 

Judge  TIMOTHY  WALKEE,  in  his  address  delivered  at  Cincinnati, 
in  1837,  narrates  his  recollection  of  those  times.  He  says  : 

"  The  powerful  engine  of  caricature  was  set  in  motion.  I  have  a 
distinct  recollection  of  a  picture  I  saw  in  boyhood,  prefixed  to  an 
anti-moving  to  Ohio  pamphlet,  in  which  a  stout,  ruddy,  well- 
dressed  man  on  a  sleek,  fat  horse,  with  a  label,  '  I  am  going  to 
Ohio,'  meets  a  pale  and  ghastly  skeleton  of  a  man,  scarcely  half 
dressed,  on  the  •wreck  of  what  was  once  a  horse,  already  bespoken 
by  the  more  politic  crowd,  with  a  label,  '  I  have  been  to  Ohio.'  " 


57 

were  not  wanting  those  who  made  a  struggle  to  remove, 
even  at  that  date,  the  inhibition  against  slavery.*  Con 
gress,  however,  had  recognized  that  the  provisions  of 
the  Ordinance  were  a  contract  with  the  people  who 
had  settled  there.  Hence  the  Enabling  Act  required 
that  the  Constitution  of  the  State  be  not  repugnant 
to  those  provisions.  The  struggle  for  a  constitu 
tion  free  from  this  restriction,  on  the  part  of  the 
Virginia  and  Kentucky  immigrants,  was,  nevertheless, 
sharp  enough  to  bring  to  its  front  some  of  the  men  of 
the  Newburgh  camp  and  their  descendants.  Foremost 
among  them  was  Judge  Ephraim  Cutler,  one  of  the  first 
colonists,  and  son  of  that  Manasseh  Cutler  by  whose 
immediate  agency,  as  it  appears  to  me,  the  anti-slavery 
provision  in  the  ordinance  was  inserted.  The  spirit 
of  the  Ordinance  and  of  its  Revolutionary  sponsors 
triumphed,  and  the  proviso  that  "there  shall  be  neither 
"  slavery  nor  involuntary  servitude  except  in  punish  - 
"  ment  of  crime,"  became  part  of  the  first  Constitution 
of  Ohio.* 


*  "  Judge  Burnet's  '  Notes'  and  Mr.  William  Henry  Smith's  'Life 
of  St.  Clair '  do  not  convey  the  impression  that  an  issue  was  really 
drawn  in  the  Ohio  Convention  of  1802.  But  Judge  Ephraim  Cut 
ler's  journal  conveys  that  impression  very  distinctly.  Those  favor 
able  to  slaves  took  the  ground  that,  however  it  might  be  with  the 
Territory,  the  Ordinance  could  not  bind  a  State  unless  the  State 
herself,  as  a  party  to  a  compact,  assented  to  it ;  and  they  accord 
ingly  advocated  a  '  modified  form '  of  servitude.  Judge  Cutler  (a 
son  of  Dr.  Manasseh  Cutler)  was  one  of  the  Washington  County 
delegates  to  frame  the  Constitution,  and  a  member  of  the  committee 
charged  with  framing  the  bill  of  rights,  of  which  John  W.  Brown 
was  chairman,  Cutler's  journal  gives  this  account  of  proceedings 
in  the  committee  :  •  An  exciting  subject  was,  of  course,  immedi 
ately  brought  before  the  committee,  the  subject  of  admitting  or  ex 
cluding  slaves,  Mr.  Brown  produced  a  section  which  defined  the 
subject,  in  effect,  thus  :  No  person  shall  be  held  in  slavery,  if  a 


58 

Jefferson  was  then  President,  and  it  may  have  given 
him  pleasure  to  see  this  precept  of  his  pen  take  on 
in  this  way  a  new  permanence  and  power. 

In  the  meantime,  May  7,  1800,  an  Act  of  Congress 
had  established  a  new  territory,  Indiana,  comprising 


male,  after  he  is  thirty-five  years  of  age ;  and  if  a  female,  after 
twenty-five  years  of  age.  I  observed  to  the  committee  that  those 
who  had  elected  me  to  represent  them  were  desirous  of  having  this 
matter  clearly  understood,  and  I  must  move  to  have  the  section 
laid  upon  the  table  until  our  next  meeting,  and  to  avoid  any  warmth 
of  feeling,  I  hoped  that  each  member  of  the  committee  would  pre 
pare  a  section  which  should  express  his  views  fully  on  this  impor 
tant  subject.  The  committee  met  the  next  morning,  and  I  was 
called  on  for  what  I  had  proposed  the  last  evening.  I  then  read  to 
them  the  section  as  it  now  stands  in  the  Constitution.  Mr.  Brown 
observed  that  what  he  had  introduced  was  thought  by  the  greatest 
men  in  the  nation  to  be,  if  established  in  our  Constitution,  obtain 
ing  a  great  step  towards  a  general  emancipation  of  slavery,  and 
was,  in  his  opinion,  greatly  to  be  preferred  to  what  I  had  offered.' 

"  The  section  that  Cutler  prepared  prohibited  slavery  in  the  very 
words  of  the  Ordinance  ;  it  forbade  the  holding,  as  a  servant, 
under  pretense  of  indenture  or  otherwise,  any  male  person  twenty- 
one  years  of  age,  or  female  person  eighteen  years  of  age,  unless 
such  person  had  entered  into  the  indenture  while  in  a  state  of  per 
fect  freedom,  and  on  condition  of  a  liona-fide  consideration,  received 
or  to  be  received,  for  the  service  ;  closing  with  the  clause  :  '  Nor 
shall  any  indenture  of  any  negro  or  mulatto,  hereafter  made  and 
executed  out  of  this  State,  or  if  made  in  this  State,  where  the  term 
of  service  exceeds  one  year,  be  of  the  least  validity,  except  those 
given  in  the  case  of  apprenticeships.' 

"  After  a  sharp  discussion  in  the  Committee  the  section  was 
adopted  by  a  majority  of  one,  five  votes  to  four ;  it  now  went  to 
the  Convention,  where  several  attempts  were  made  to  weaken  or 
obscure  the  sense  of  the  section  on  its  passage.  In  Committee  of 
the  Whole  a  material  change  was  introduced.  Cutler  was  unwell 
and  so  absent  at  the  time.  '  I  went  to  the  Convention,'  he  con 
tinues,  '  and  moved  to  strike  out  the  obnoxious  matter  and  made 
my  objections  as  forcible  as  I  was  able,  and  when  the  vote  was 
called  Mr.  Milligan  changed  his  vote  and  we  succeeded  in  placing 
it  in  its  original  state.'  Thus  by  a  majority  of  only  one,  first  in  the 
Committee  and  afterwards  in  the  Convention  itself,  was  the  at 
tempt  to  fasten  a  modified  slavery  upon  the  State  of  Ohio  de 
feated."— Hinsdale's  "  The  Old  Northwest." 


59 

the  whole  Northwest  Territory,  outside  of  the  limits 
of  Ohio,  then  slight!}*  larger  than  at  present. 

The  Enabling  Act  provided  for  a  government  in  all 
respects  similar  "  to  that  provided  by  the  Ordinance  of 
"  Congress  passed  on  the  thirteenth  day  of  July,  one 
"  thousand  seven  hundred  and  eighty-seven." 

Possibly  this  establishment  of  a  new  territory  was 
brought  about  in  part  by  efforts  of  the  old  slave-holding 
element,  which  was  there  already  when  the  Ordinance 
passed,  particularly  at  Vincennes,  where  many  slaves 
were  held.  Certain  it  is  that  that  element  immediately 
besought  Congress  to  remove  the  anti-slavery  provis 
ion,  and  five  times  in  four  years  their  petitions  to  that 
body  were  refused. 

The  most  formidable  of  these  originated  with  General 
William  Henry  Harrison/-  afterwards  President  of  the 


*  William  Henry  Harrison  was  born  within  the  present  limits  of 
Virginia,  at  Berkeley,  Charles  City  Co.,  Feb.  9,  1773.  He  joined 
the  army  in  1792,  and  became  captain  in  1795.  June  1,  1798,  he 
resigned  his  commission  in  the  army  and  was  at  once  appointed 
by  President  John  Adams,  Secretary  of  the  Northwest  Territory, 
under  Gen.  Arthur  St.  Clair  as  Governor.  In  October,  1799,  Har 
rison  resigned  this  position  to  take  his  seat,  for  a  single  year  of 
service,  as  territorial  delegate  in  Congress.  During  the  session  of 
Congress  for  this  year  part  of  the  Northwest  Territory  was  formed 
into  the  Territory  of  Indiana,  including  the  present  States  of 
Indiana,  Illinois,  Michigan  and  Wisconsin,  and  Harrison  was  made 
its  Governor  and  Superintendent  of  Indian  Affairs.  To  this  post  he 
was  reappointed  successively  by  both  Jefferson  and  Madison.  In 
1805  he  organized  at  Vincennes  the  Legislature  of  the  Territory. 
He  was  the  son-in-law  of  John  Cleves  Symmes.  the  founder  of 
Cincinnati  and  the  settlements  in  that  vicinity.  It  was  in  connec 
tion  with  his  ever  memorable  campaign  for  the  Presidency,  in 
1840,  that  the  name  Buckeye  came  into  general  use,  as  applied  to 
the  State  of  Ohio  and  to  its  -most  distinguished  citizen.  The  first 
application  of  this  word  to  anything  except  the  buckeye  tree  was 
made  by  the  Indians  who  were  greatly  impressed  by  the  bearing  of 
Col.  Ebenezer  Sproat  who  acted  as  High  Sheriff  at  the  opening  of 


60 

United  States.  At  that  time,  and  for  some  years  after 
wards,  he  was  Governor  of  the  Territory,  and  the  peti 
tion  bore  the  endorsement  not  only  of  himself  as  Gov 
ernor,  but  also  of  the  Legislative  Council.  It  was  pre 
pared  and  forwarded  in  the  winter  of  1802-3,  and  set 
forth  urgently  the  advantages  which  would  accrue  to 
the  territory  from  immigration  from,  the  older  States  if 
the  intending  settlers  were  not  deterred  by  the  neces 
sity  of  first  disposing  of  their  slaves.  The  petition  was 
referred  to  a  committee,  at  the  head  of  which  was  John 
Randolph  of  Virginia.  He  reported  from  this  com 
mittee,  March  2,  1803,  the  following  resolution  : 

"  Resolved,  That  it  is  inexpedient  to  suspend   for   a 
limited  time  the  operation  of  the  Sixth  Article  of  Com- 


the  first  court  held  in  the  Northwest  Territory  in  1788  at  Marietta, 
O.  He  marched  at  the  head  of  the  procession  with  drawn  sword. 
So  imposing  was  he  in  stature,  and  so  striking  his  dignity,  that  the 
Indians  cried  out  "  Hetuck,"  or  "  Big  Buckeye."  In  1840  a  Demo 
cratic  newspaper  declared  that  Gen.  Harrison  was  "  better  fitted  to 
sit  in  a  log-cabin  and  drink  hard  cider  than  to  rule  in  the  White 
House."  This  expression  was  generally  resented,  and  so  began  the 
log-cabin  and  hard-cider  campaign.  Log-cabins  sprang  up  all  over 
the  State  and  country,  and  were  even  carried  in  political  proces 
sions.  The  first  of  these,  which  became  a  model  for  many  others, 
was  built  of  buckeye  logs.  It  was  filled,  roof  and  all,  with  enthusi 
astic  Buckeye  boys,  who  sang  lustily  : 

•'  O  what,  tell  me  what,  is  to  be  your  cabin's  fate  ? 
We'll  wheel  it  to  the  Capitol,  and  place  it  there  elate 
For  a  token  and  a  sign  of  the  Bonnie  Buckeye  State." 

The  campaign  was  intensely  exciting,  and  the  buckeye  figured 
in  it  largely.  Myriads  of  men  shouted  for  Gen  Harrison  : 

';  Hurrah  for  the  father  of  the  Great  West, 
For  the  Buckeye  who  follows  the  plow." 

Gen.  Harrison  was  indeed  a  "  Big  Buckeye."  His  "  Big  Buck 
eye  "  grandson  now  worthily  fills  the  Presidential  chair,  which  he 
himself  filled  for  a  period  all  too  brief. 


61 

pact  between  the  original  States    and   the   people   and 
States  west  of  the  Ohio." 

The  report  reads  further  : 

"  That  the  rapid  population  of  the  State  of  Ohio 
sufficiently  evinced  in  the  opinion  of  your  committee, 
that  the  labor  of  slaves  is  not  necessary  to  promote  the 
growth  and  settlement  of  colonies  in  that  region.  That 
this  labor,  demonstrable  the  dearest  of  any,  can  only 
be  employed  to  advantage  in  the  cultivation  of  products 
more  valuable  than  any  known  to  that  quarter  of  the 
United  States.  That  the  committee  deem  it  highly 
dangerous  and  inexpedient  to  impair  a  provision  wisely 
calculated  to  promote  the  happiness  and  prosperity  of 
the  northwestern  country,  and  to  give  strength  and  se 
curity  to  that  extensive  frontier.  In  the  salutary  opera 
tion  of  this  sagacious  and  benevolent  restraint  it  is  be 
lieved  that  the  inhabitants  of  Indiana  will,  at  no  distant 
day,  find  ample  remuneration  for  a  temporary  privation 
of  labor  and  of  emigration." 

The  illustration  was  significant  and  the  prediction 
just.  Thirty  years  later  Chief- Justice  Chase,  in  his 
preface  to  the  Kevised  Statutes  of  Ohio,  thus  elo 
quently  referred  to  the  scope  of  the  Ordinance  of  1787 
and  to  its  actual  operation  : 

"  By  the  ordinance  of  1785,  Congress  had  executed 
in  part  the  great  national  trust  confided  to  it,  by  pro 
viding  for  the  disposal  of  the  public  lands  for  the 
common  good,  and  by  prescribing  the  manner  and 
terms  of  sale.  And  by  that  of  1787  provision  was  made 
for  successful  forms  of  territorial  government,  adapted 
to  successive  steps  of  advancement  in  the  settlement 
of  the  Western  country.  It  comprehended  an  intelli 
gible  system  of  law  on  the  descent  and  conveyance 
of  real  property  and  the  transfer  of  personal  goods. 
It  also  contained  five  articles  of  compact  between  the 
original  States  and  the  people  and  States  of  the  terri 
tory,  establishing  certain  great  fundamental  principles 
of  governmental  duty  and  private  right  as  the  basis  of 
all  future  constitutions  and  legislation,  unalterable 
and  indestructible  except  by  that  final  and  common 


62 

ruin  which,  as  it  has  overtaken  all  former  systems  of 
human  polity,  may  yet  overwhelm  our  American  Union. 
"  Never,  probably,  in  the  history  of  the  world  did  a 
measure  of  legislation  so  accurately  fulfill  and  yet  so 
mightily  exceed  the  anticipations  of  the  legislators. 
The  ordinance  has  been  well  described  as  having  been 
a  pillar  of  cloud  by  day  and  of  fire  by  night  in  the  set 
tlement  and  government  of  the  Northwestern  States. 
When  the  settlers  went  into  the  wilderness  they  found 
the  law  already  there.  It  was  impressed  upon  the 
soil  itself,  while  it  yet  bore  up  nothing  but  the  forest. 
The  purchaser  of  land  became  by  that  act  a  party  to 
the  compact  and  bound  by  its  perpetual  covenants, 
so  far  as  its  conditions  did  not  conflict  with  the  terms 

of  the  cessions  of  the  States. 

*  *  *  *  *  * 

"  This  remarkable  instrument  was  the  last  gift  of  the 
Congress  of  the  old  confederation  to  the  country,  and 
it  was  a  fit  consummation  of  their  glorious  labors.  At 
the  time  of  its  promulgation  the  Federal  Constitution 
was  under  discussion  in  the  convention,  and  in  a  few 
months,  upon  the  organization  of  the  new  national 
Government,  that  Congress  was  dissolved,  never  again 
to  reassemble.  Some,  and  indeed  most,  of  the  prin 
ciples  established  by  the  articles  of  compact  are  to  be 
found  in  the  plan  of  1784  and  in  the  various  English 
and  American  bills  of  rights.  Others,  however,  and 
these  not  the  least  important,  are  original.  Of  this 
number  are  the  clauses  in  relation  to  contracts,  to 
slavery,  and  to  the  Indians.  On  the  whole,  these 
articles  contain  what  they  profess  to  contain,  the  true 
theory  of  American  liberty.  The  great  principles  pro 
mulgated  by  it  are  wholly,  purely,  American.  They 
are,  indeed,  the  genuine  principles  of  freedom  unadul 
terated  by  that  compromise  with  circumstances,  the 
effects  of  which  are  visible  in  the  Constitution  and 
history  of  the  Union." 

Five  years  after  this,  in  an  address  delivered  on  the 
semi-centennial  of  the  Ordinance,  Judge  Timothy 
Walker  eulogizes  the  wonderful  fact  that  in  spite  of 
the  great  interests  and  wide  areas  which  for  Half  a  cen 
tury  it  had  controlled,  not  one  of  them  all  had  ever 


63 

made  necessary  an  amendment  of  tlie  Ordinance.  Judge 
Walker,  speaking  at  Cincinnati  in  1837,  said  : 

"  Upon  the  surpassing  excellence  of  this  ordinance 
no  language  of  panegyric  would  be  extravagant.  It  ap 
proaches  as  nearly  to  absolute  perfection  as  anything 
to  be  found  in  the  legislation  of  mankind  ;  for  after  the 
experience  of  fifty  years  it  would,  perhaps,  be  impossi 
ble  to  alter  without  marring  it.  In  short,  it  is  one  of 
those  matchless  specimens  of  sagacious  forecast  which 
even  the  reckless  spirit  of  innovation  would  not  ven 
ture  to  assail.  The  emigrant  knew  beforehand  that 
this  was  a  land  of  the  highest  political  as  well  as  na 
tional  promise,  and  under  the  auspices  of  another 
Moses  he  journeyed  with  confidence  towards  his  new 
Canaan." 

Earlier  than  either  of  these,  in  the  speech  to  which 
Hayne  replied  and  which  was  followed  by  the  wonder 
ful  "  Reply  to  Hayne,"  Webster  had  said  : 

"  We  are  accustomed  to  praise  the  lawyers  of  an 
tiquity  ;  we  help  to  perpetuate  the  fame  of  Solon  and 
Lycurgus  ;  but  I  doubt  whether  one  single  law  of  any 
lawgiver,  ancient  or  modern,  has  produced  effects  of 
more  distinct,  marked  and  lasting  character  than  the 
Ordinance  of  1787.  We  see  its  consequences  at  this 
moment,  and  we  shall  never  cease  to  see  them,  per 
haps,  while  the  Ohio  shall  flow." 

Senator  George  F.  Hoar,  of  Massachusetts,  brought 
his  admirable  and  eloquent  oration  at  the  Marietta  Cen 
tennial  to  this  conclusion  : 

11  We  stand  by  the  graves  of  great  soldiers  of  the 
War  of  Independence.  This  is  the  centennial  of  the 
State  within  whose  borders  were  born  Grant,  and  Sher 
man,  and  Sheridan,  and  Garfield.  The  men  of  the 
He  volution  fought  that  the  principles  of  the  Ordinance 
of  1787  might  become  living  realities.  The  great  cap 
tains  of  the  late  war  fought  that  the  compact  might  be 
kept  and  forever  remain  unalterable.  The  five  States 
of  the  Northwest  sent  nearly  a  million  soldiers  into  the 
war  for  the  Union.  *  *  *  It  is  this  that  makes  the 


64 

birthday  of  Ohio  another  birthday  of  the  nation  itself. 
Forever  honored  be  Marietta  as  another  Plymouth. 
The  Ordinance  belongs  with  the  Declaration  of  Inde 
pendence  and  the  Constitution.  It  is  one  of  the  three 
title-deeds  of  American  constitutional  liberty.  As  the 
American  youth  for  uncounted  centuries  shall  visit  the 
capital  of  his  country,  *  *  *  he  will  admire  the 
evidences  of  its  grandeur  and  the  monuments  of  its 
historic  glory,  *  *  *  but  if  he  know  his  country's 
history  and  consider  wisely  the  sources  of  her  glory, 
nothing  will  so  stir  his  heart  as  two  fading  and  time- 
soiled  papers,  whos^e  characters  were  traced  by  the 
hands  of  the  fathers  a  hundred  years  ago.  They  are 
original  records  of  the  acts  which  devoted  this  nation 
forever  to  equality,  to  education,  to  religion,  and  to 
liberty.  One  is  the  Declaration  of  Independence,  the 
other' the  Ordinance  of  1787." 

The  last  report  on  one  of  these  Indiana  petitions  for 
removal  of  the  anti-slavery  prohibition  of  the  Ordi 
nance  was  made  to  the  Senate  in  November,  1807,  by 
Mr.  Franklin,  of  North  Carolina,  upon  a  petition  from 
the  Legislative  Council  and  House  of  Representatives. 
The  report  was  adverse  and  was  concurred  in  by  the 
Senate  without  a  dissenting  vote. 

This  virtually  ended  the  conflict.  The  eastern 
portion  of  the  Indiana  Territory  rilled  up  rapidly 
with  settlers  from  Ohio  and  the  North,  and  when,  in 
1816,  that  eastern  portion  came  to  be  the  State,  its 
constitution  bore  the  seal  of  the  great  Ordinance  that 
there  should  be  "  neither  slavery  nor  involuntary  servi- 
"  tude,  except  for  crime." 

In  Illinois  there  was  the  same  struggle,  with  more 
peril  as  to  the  result. 

The  pro-slavery  element  in  that  portion  of  the  North 
west  Territory  was  even  stronger  and  more  violent 
than  it  had  been  in  Indiana.  In  spite  of  the  provision  of 
the  enabling  act  that  the  new  constitution  should  con- 


65 

form  to  the  requirements  of  the  Ordinance  of  1787, 
this  element  made  strenuous  efforts,  in  the  campaign 
for  the  election  of  delegates  to  the  convention,  and 
afterwards  in  that  body,  to  secure  a  constitution  that 
did  not  inhibit  slavery.  It  failed  ;  and  in  1818,  once 
more  came  into  being  a  new  State,  having  the  old 
certificate  of  lineage,  in  a  constitution  which  provided 
that  within  its  boundaries  there  should  be  "neither 
"  slavery  nor  involuntary  servitude,  except  for  crime." 

Once  in  the  Union  as  a  State,  the  State  of  Illinois 
was  as  free  to  amend  its  constitution  with  regard  to 
slavery  as  was  any  other  State.  The  slave  power  was 
not  slow  to  take  advantage  of  this  liberty,  and  in  1824 
a  tremendous  effort  was  made  to  secure  a  new  Constitu 
tional  Convention  with  that  end  in  view.  The  rival 
candidates  for  Governor  were  nominated  on  that  issue. 
The  struggle  was  intense,  but  the  call  for  a  convention 
was  defeated.  This  result  was  largely  due  to  Edward 
Coles,  whom  I  have  already  mentioned.  He  was  the 
anti-slavery  candidate  for  Governor,  and  was  elected. 

Thirty  years  afterwards — in  1856— in  his  "  History 
of  the  Ordinance  of  1787,"  he  refers  to  his  own  part  in 
that  struggle  as  his  consolation  in  old  age,  at  the  same 
time  that  with  prophetic  foreboding,  referring  to  the 
Ordinance,  he  says  :  "  Since  its  principles  were  repudi- 
"  ated  in  1854  we  have  had  nothing  but  contention, 
"  riots  and  threats,  if  not  the  awful  realities  of  civil 
"  war."* 


*  He  died  in  1868,  having  first  lived  through  the  storm  of  those 
realities  to  see  the  same  repudiated  principles,  in  their  time-hon 
ored  phrases,  restored  and  made  applicable  to  the  whole  United 
States.  He  was  a  Virginian,  who  had  set  his  own  slaves  free,  and 
had  given  to  each  head  of  a  family  160  acres  of  land. 


66 

The  subject  matter  of  those  apprehensions,  which  he 
thus  expressed,  is  part  of  that  later  history  of  the 
Ordinance  which  most  concerns  ourselves.  In  1837  its 
illustrious  phrase  was  stamped  upon  the  Constitution 
of  Michigan,  and  in  1848  upon  that  of  Wisconsin. 
The  five  States  of  the  Northwest  Territory  were  thus 
all  made  bright  with  freedom,  like  the  five  points  of  a 
star,  and  the  whole  area  made  radiant  with  the  welfare 
of  a  free  people. 

Long  before  this  the  Ordinance  itself  had  entered  on 
a  new  career. 

From  the  first  beginning  of  a  feeling  of  opposition 
between  the  States  upon  the  slavery  question,  that 
feeling  took  the  form  of  jealousy  over  the  relative 
number  of  the  slave  and  free  States  which  should  be 
admitted  into  the  Union  and  should  thus  give  to  one 
side  or  the  other  a  preponderance  in  Congress. 

The  province  of  Congress  to  control  the  slavery 
question  in  the  Territories  was  deter  mined  by  the  fact 
that  in  law  the  slavery  question  is  a  question  of  prop 
erty  right.  A  person  who  is  a  slave  is,  in  the  contem 
plation  of  the  law,  the  property  of  some  one  else.  In 
the  States,  the  care  and  province  of  the  State  include 
all  rights  of  person  and  of  property ;  the  province  of 
the  Federal  Government  includes  all  interstate  and  in 
ternational  relations.  In  the  Territories,  however,  the 
province  of  the  Federal  Government  includes,  also,  the 
rights  of  person  and  of  property,  hence  Congress  con 
trolled  there  the  question  of  the  right  to  property  in 
slaves. 

For  a  time  this  question  was  easily  disposed  of. 
East  of  the  Mississippi  the  settlers  in  territory  not 
included  in  the  States  generally  held  slaves,  while  in 


67 

the  territory  north  of  the  Ohio  there  were  none.  By 
tacit  agreement  new  States  were  admitted  from  alter 
nate  sides  of  the  river.  In  this  way  came  in  Louisiana 
(1812),  Indiana  (1816),  Mississippi  (1817),  Illinois 
(1818),  Alabama  (1819),  and  Maine  (1820).  The  terri 
tory  east  of  the  Mississippi  thus  exhausted,  Missouri 
the  same  year  came  knocking  at  the  door.  This  raised 
a  stormy  question.  What  of  the  whole  vast  territory 
west  of  the  Mississippi  ?  That  was  settled  by  the 
famous  "  Missouri  Compromise/'  an  Act  of  Congress 
approved  March  6,  1820,  entitled  :  "  An  Act  *  *  * 
to  Prohibit  Slavery  in  Certain  Territories,"  which  in 
its  eighth  section  applies  the  language  of  the  Ordi 
nance  of  1787  to  the  territory  westward  of  the  Missis 
sippi  : 

"  That  iii  all  that  territory  ceded  by  France  to  the 
United  States,  under  the  name  of  Louisiana,  which  lies 
north  of  36°  30'  north  latitude  not  included  within  the 
limits  of  the  State  contemplated  by  this  act,  slavery 
and  involuntary  servitude,  otherwise  than  in  punishment 
of  crimes  iv hereof  the  parties  shall  have  been  duly  con 
victed,  shall  be  and  is  hereby  forever  prohibited  :  Pro 
vided  always  that  any  person  escaping  into  the  same 
from  whom  labor  or  service  is  lawfully  claimed  in  any 
State  or  Territory  of  the  United  States,  such  fugitive 
may  be  lawfully  reclaimed,  and  conveyed  to  the  person 
claiming  his  or  her  labor  or  service  as  aforesaid." 

This  meant  that  it  had  been  agreed  upon  in  Congress 
that  the  line  of  the  southern  boundary  of  the  North 
west  Territory  should  be  prolonged  due  west  to  the 
Pacific,  and  that  new  States,  free  and  slave  alternately 
from  north  and  south  of  that  line,  should  be  admitted 
as  before.  Upon  the  passage  of  this  act  John  Quincy 
Adams  wrote  to  his  wife  : 

"  If  the  Union  must  be  dissolved,  the  slavery  question 


68 

is  precisely  the  question  on  which  it  ought  to  break. 
For  the  present,  however,  that  question  is  laid  to  sleep." 

It  was  supposed,  and  correctly,  on  both  sides,  that 
the  Territories,  when  they  became  States,  would  adopt 
or  exclude  slavery  in  accordance,  in  each  instance,  with 
their  territorial  condition.  Hence  it  was  that,  on  the 
adoption  of  this  Compromise,  Mr.  Adams  regarded  the 
question  as  "  laid  to  sleep."  If  there  was  sleep,  how 
ever,  it  was  troubled  sleep,  not  rest.  Florida  and  Iowa 
and  Arkansas  and  Oregon,  it  is  true,  came  in  respect 
ively  without  contention.  The  acquisition  of  Texas  and 
Mexico's  territorial  concessions  tended  to  disturb  the 
equilibrium  by  greatly  enlarging  the  territory  south  of 
the  dividing  line.  California  was  a  cause  of  contest, 
involved  with  which  also  were  the  applications  of  New 
Mexico  and  Utah  for  territorial  governments. 

In  1854  these  troubles  culminated  in  the  passage 
through  Congress  and  approval  by  the  President  of 
the  "  Kansas-Nebraska  bill,"  by  which  the  Congress  of 
the  United  States  for  the  first  time  withdrew  the  pro 
tection  of  the  Ordinance  from  territory  which  the  flag 
with  its  inscription  had  once  covered.  The  repeal  was 
in  these  words  : 

"  The  eighth  section  of  the  act  preparatory  to  the 
admission  of  Missouri  into  the  Union,  approved  March 
sixth,  eighteen  hundred  and  twenty,  which,  being  in 
consistent  with  the  principle  of  non-intervention  by 
Congress  with  slavery  in  the  States  and  Territories,  as 
recognized  by  the  legislation  of  eighteen  hundred  and 
fifty,  commonly  called  the  compromise  measures,  is 
hereby  declared  inoperative  and  void." 

I  was  a  student  in  Yale  College  at  the  time.  I  re 
member  that  the  church  bells  in  New  Haven  were  tolled 
as  for  a  funeral  when  the  act  of  repeal  was  passed.  My 


69 

father  and  mother  were  Virginians.  They  set  their 
slaves  free  when  they  were  married,  and  began  life  in  a 
free  State,  but  my  early  associations  and  my  relatives 
were  largely  in  the  South.  I  was  provoked  by  what 
seemed  to  me  so  much  uncalled-for  and  jealous  feeling. 
To-day  those  bells  sound  in  my  memory  as  the  pro 
phetic  knell,  I  need  not  tell  you  of  how  many  or  of 
whom.  Nor  need  I  here  trace  out  for  you  how  the 
breaking  out  of  the  war  arose  from  that  repeal. 

It  is  better  to  turn  from  these  memories  to  the 
more  pleasing  contemplation  of  the  majesty  with  which 
at  the  outbreak  of  the  war,  Ohio,  Indiana,  Illinois, 
Michigan,  Wisconsin,  Kansas  and  Nebraska,  as  so 
many  children  of  the  Ordinance,  each  bearing  on  its 
Constitution  the  inscription  that  there  should  be 
"  neither  slavery  nor  involuntary  servitude  except  for 
crime,"  came  to  the  rescue  of  the  Union.  More  than 
a  million  soldiers  enlisted  on  the  side  of  freedom  from 
these  seven  States.  The  influence  of  the  Ordinance  in 
fixing  the  character  of  those  States  has  been  made  plain 
to  you.  Perhaps  their  soldiers  turned  the  scale  ;  there 
were  enough  of  them  for  that.  In  view  of  the  repealing 
Act  of  1854,  it  was  the  very  poetry  of  justice,  when  the 
victory  came,  to  go  back  to  the  Ordinance  of  1787  ; 
to  take  those  words  which,  in  the  Kansas  and 
Nebraska  Act,  it  was  decreed,  should  be  "  inopera 
tive  and  void,"  and  to  declare  of  those  words  that 
throughout  the  United  States,  and  in  all  places  under 
their  jurisdiction,  they  should  be  forever  in  full  force. 

The  circumstances  which  attended  this  transaction 
deserve  notice.  On  March  6th,  1862,  a  special  message 
of  President  Lincoln  had  urged  upon  Congress  the  adop 
tion  of  a  joint  resolution  pledging  the  co-operation  of 


70 

the  United  States,  by  both  pecuniary  aid  and  appro 
priate  legislation,  "  with  an}'  State  which  may  adopt 
the  gradual  abolishment  of  slavery," — the  special  idea 
iu  this  being  that  the  acceptance  of  it  by  the  border 
States  would  cut  off  from  the  South  all  hope  that  these 
States  Avould  ever  join  in  demanding  the  preservation 
of  slaverj'.  This  suggestion  the  Senate  had  adopted 
by  a  vote  of  32  to  10.  Other  like  proposals  had 
been  brought  forward  and  considered  in  that  body. 
There  had  been  also  some  propositions  in  the  House. 
No  legislation,  however,  was  perfected,  and  the  full 
weight  of  the  situation  was  left  to  be  devolved  upon 
the  President,  so  far  as  concerned  the  question  of 
slavery  in  the  States.  An  Act  of  Congress,  approved 
June  L9th,  1862,  enacted  that  from  that  date  in  any 
Territory  in  the  United  States,  there  should  be  neither 
slavery  nor  involuntary  servitude  except  for  crime.  A 
month  later,  July  19th,  the  President  approved  another 
act,  which  authorized  the  enlistment  of  colored  men  as 
soldiers,  and  provided  that  no  fugitive  slave  should  be 
surrendered  by  any  person  in  the  military  or  naval  ser 
vice  ;  but  that  all  slaves  of  rebels  corning  into  the  pos 
session  or  under  the  protection  of  the  Government 
should  be  free.  This  march  of  events  was  quickened 
by  the  national  success  of  September  17th,  in  the  battle 
of  Antietam,  and  on  the  22d  of  that  month  President 
Lincoln  issued  his  Emancipation  Proclamation.  The 
United  States  was  now  fully  and  finally  committed  to 
the  principle  embodied  in  the  Ordinance,  and  there  re 
mained  only  to  fix  that  policy  forever  by  embedding  it 
in  the  organic  law. 

On  December  14th,  1863,  in  the  second  week  of  the 
First  Session  of  the  Thirtj'-eighth  Congress,  directly  after 


71 

the  Speaker  had  announced  the  Standing  Committees 
and  during  the  call  of  States  for  bills  on  leave  and  joint 
resolutions,  both  Mr.  Stevens  and  Mr.  Ashley  having 
introduced  bills  for  the  repeal  of  the  Fugitive  Slave 
Act,  there  followed  the  motion  of  which  the  following 
is  the  record  : 

"  MR.  ASHLEY  also  introduced  a  bill  to  provide  for 
the  submission  to  the  several  States  of  a  proposition  to 
amend  the  National  Constitution  prohibiting  Slavery, 
or  involuntary  servitude  in  all  of  the  States  and  Terri 
tories  now  owned  or  which  may  be  hereafter  acquired 
by  the  United  States."* 

MK.  ASHLEY  further  introduced  a  joint  resolution  to 
authorize  the  enlistment  of  colored  citizens  in  the  re 
bellious  districts ;  Mr.  Lovejoy  brought  in  a  very  rad 
ical  bill  for  giving  effect  to  the  Declaration  of  Inde 
pendence  in  the  matter  of  the  rights  of  colored  per 
sons  ;  and  Mr.  Arnold  proposed  a  measure  in  aid  of 
the  execution  of  President  Lincoln's  Proclamation  of 
Emancipation.  To  these  proposals  Mr.  "Wilson  added 
one  for  a  joint  resolution  providing  for  the  adop 
tion  by  the  States  of  an  amendment  to  the  Constitution 
declaring  that  "  Slavery,  being  incompatible  with  a  free 
Government,  is  forever  prohibited  in  the  United  States ; 
and  involuntary  servitude  shall  be  permitted  only  as  a 
punishment  for  crime." 

Both  Mr.  Ashley's  proposal  and  Mr.  Wilson's  were 
referred  to  the  Judiciary  Committee.  No  action  was 
taken  thereon  before  a  joint  resolution  came  from  the 
Senate,  which  became  through  the  action  of  the  House 
the  Amendment  for  Universal  Liberty  everywhere  in 
the  United  States. 

*  Congreuwnal  Globe,  1st  Sess.  38th  Congress,  page  19. 


72 

The  initiation  in  the  Senate  of  this  grand  completion 
of  liberty  in  America  was  due  to  John  B.  Henderson,  a 
Senator  of  Missouri,  who  was  at  every  stage  of  the 
great  struggle  conspicuous  for  the  courage,  sagacity 
and  unwavering  confidence  with  which  he  accepted, 
on  behalf  of  the  most  important  of  the  border  States, 
whatever  the  new  progress  of  the  nation  into  light 
and  liberty  required.  It  was  on  the  llth  of  January, 
1864,  that  Mr.  Henderson  introduced  in  the  Senate  a 
joint  resolution  providing  for  an  amendment,  of  which 
Article  I.  was  to  be  : 

"  Slavery  or  involuntary  servitude,  except  as  a  pun 
ishment  for  crime,  shall  not  exist  in  the  United  States."" 

MR.  SUMNER  also  introduced,  February  8th,  a  resolu 
tion  providing  for  a  constitutional  amendment  declaring 
that,  "  Everywhere  within  the  limits  of  the  United 
States,  and  of  each  State  or  Territory  thereof,  all  per 
sons  are  equal  before  the  -law,  so  that  no  person  can 
hold  another  as  a  slave." 

On  February  10th,  1864,  Mr.  Trumbull,  from  the 
Judiciary  Committee  of  the  Senate,  to  which  these 
propositions  had  been  referred,  reported  adversely  upon 
Mr.  Surnner's,  but  returned  Mr.  Henderson's,  altered  to 
read  in  its  chief  section  : 

"  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  juris 
diction." 

The  identical  paper  upon  which  Mr.  Henderson  had 
written  his  resolution  was  returned  by  the  Judiciary 

*  Congressional  Globe,  1st  Sess.  38th  Congress,  page  145. 


73 

Committee  to  the  Senate,  with  the  altered  wording  of 
the  chief  section.  To  this  had  been  also  added  the 
second  section  as  it  now  stands.* 

The  question  of  the  resolution  thus  reported  came 
up  in  the  Senate  on  the  28th  of  March,  and  on  April 
8th,  after  a  vigorous  debate,  and  fierce  opposition,  the 
resolution  was  adopted  by  a  vote  of  38  to  6. 

Mr.  Suniner  objected  in  the  debate  to  the  retention 
of  the  language  of  the  Ordinance  of  1787,  and  in  reply 
to  him  Mr.  Howard  of  Michigan  protested  that  he  pre 
ferred 

"to  go  back  to  the  good  old  Anglo-Saxon  language  em 
ployed  by  our  fathers  in  the  Ordinance  of  1787,  an  ex 
pression  which  has  been  adjudicated  upon  repeatedly, 
which  is  perfectly  well  understood  both  by  the  public 
and  by  judicial  tribunals  ;  a  phrase,  I  may  say  further, 
which  is  peculiarly  near  and  dear  to  the  people  of  the 
northwestern  territory,  from  whose  soil  slavery  was  ex 
cluded  by  it." 

The  resolution  thus  adopted  by  the  Senate  came  up 
in  the  House  on  May  31st,  1864,  and  excited  there,  along 
with  zealous  and  powerful  support,  the  most  rancorous 
opposition,  with  the  result,  on  coming  to  a  vote,  June 


*  As  to  this  second  section,  Mr.  Henderson  writes  me: 
"  Judge  Trumbull,  Chairman  of  the  Judiciary  Committee, 
thought  it  advisable,  before  reporting  the  13th  Amendment,  to  give 
express  power  to  Congress  to  '  carry  out  the  amendment.'  This 
suggestion  came  out  of  the  difficulties  of  construction  as  to  the 
powers  of  Congress  touching  certain  provisions  of  the  Constitution 
as  originally  framed.  And  after  consultation  with  me,  he  added, 
before  reporting  back,  the  words  giving  Congress  express  power  to 
enforce  the  Amendment.  We  both  agreed  that  these  words  did 
not  add  to  nor  detract  from  the  meaning  or  force  of  the  amendment 
as  originally  drawn,  but  thought  it  better  to  insert  them  in  order  to 
exclude  all  possibility  of  adverse  argument  as  to  the  power  of  Con 
gress  to  enforce  by  legislation  the  express  words  of  the  Amend 
ment." 


74 

15th,  of  93  in  its  favor,  to  65  against,  and  23  not  voting  ; 
a  victory  which  fell  short  of  the  two-thirds  requisite 
for  initiating  an  amendment  to  the  Constitution.  Mr. 
Ashley,  not  to  lose  what  had  been  gained  by  the 
action  of  the  Senate,  and  having  changed  his  vote 
to  the  negative  for  the  purpose,  moved  a  reconsidera 
tion  of  the  vote  of  the  House,  and,  pending  action  upon 
this,  the  session  came  to  an  end. 

The  second  session  of  the  38th  Congress  began  Dec. 
5th,  1864,  and  in  his  annual  message  President  Lincoln, 
after  stating  that  an  "  attempted  march  of  300  miles 
directly  through  the  insurgent  region  "  was  in  course 
of  execution  by  General  Sherman,  urged  consideration 
and  adoption  of  the  Henderson  joint  resolution  upon 
the  grounds  which  he  thus  presented  : 

"  Important  movements  have  occurred  during  the 
year  to  the  effect  of  moulding  society  for  durability  in 
the  Union.  Although  short  of  complete  success  it  is 
much  in  the  right  direction  that  12,000  citizens  in  each 
of  the  States  of  Arkansas  and  Louisiana  have  organized 
loyal  State  governments  with  free  constitutions,  and  are 
earnestly  struggling  to  maintain  and  administer  them. 
The  movements  in  the  same  direction — more  extensive 
though  less  definite — in  Missouri.  Kentucky  and  Ten 
nessee  should  not  be  overlooked.  But  Maryland  pre 
sents  the  example  of  complete  success.  Maryland  is 
secure  to  liberty  and  union  for  all  the  future.  The 
genius  of  rebellion  will  no  more  claim  Maryland. 
Like  another  foul  spirit,  being  driven  out,  it  may  seek 
to  tear  her,  but  it  will  woo  her  no  more. 

"  At  the  last  session  of  Congress,  a  proposed  amend 
ment  of  the  Constitution  abolishing  slavery  throughout 
the  United  States  passed  the  Senate,  but  failed  for 
lack  of  the  requisite  two-thirds  vote  in  the  House  of 
Representatives.  Although  the  present  is  the  same 
Congress  and  nearly  the  same  members,  and  without 
questioning  the  wisdom  or  patriotism  of  those  who 
stood  in  opposition,  I  venture  to  recommend  the  re 
consideration  and  passage  of  the  measure  at  the  pies- 


75 

ent  session.  Of  course,  the  abstract  question  is  not 
changed,  but  an  intervening  election  shows  almost  cer 
tainly  that  the  next  Congress  will  pass  the  measure  if 
this  does  not.  Hence,  there  is  only  a  question  of  time 
as  to  when  the  proposed  amendment  will  go  to  the 
States  for  their  action.  And  as  it  is  to  so  go,  at  all 
events,  may  we  not  agree  that  the  sooner  the  better  V 
It  is  not  claimed  that  the  election  has  imposed  a  duty 
on  members  to  change  their  views  or  their  votes  any 
further  than,  as  an  additional  element  to  be  considered, 
their  judgment  may  be  affected  by  it.  It  is  the  voice 
of  the  people  now,  for  the  first  time,  heard  upon  the 
question.  In  a  great  national  crisis  like  ours,  unanimity 
of  action  among  those  seeking  a  common  end  is  very 
desirable — almost  indispensable.  And  yet  no  approach 
to  such  unanimity  is  attainable  unless  some  deference 
shall  be  paid  to  the  will  of  the  majority  simply  because 
it  is  the  will  of  the  majority.  In  this  case,  the  com 
mon  end  is  the  maintenance  of  the  Union  ;  and  among 
the  means  to  secure  that  end,  such  will,  through  the 
election,  is  most  clearly  declared  in  favor  of  such  con 
stitutional  amendment." 

On  January  6th,  1865,  Mr.  Ashley  called  up  his 
motion  to  reconsider  the  vote  upon  the  Henderson 
resolution.  In  the  debate  which  followed  not  a  few 
former  opponents  were  supporters  of  the  measure,* 
although  the  opposition  was  still  determined  and 
bitter,  and  on  the  28th  of  January  the  motion  for 


*  The  following  nine  Representatives  changed  on  this  vote  from 
opponents  to  supporters : 

Augustus  C.  Baldwin,  Michigan  ; 
Alexander  H.  Coffroth,  Pennsylvania  ; 
Archibald  McAllister,  Pennsylvania  ; 
James  E.  English,  Connecticut  : 
Anson  Herrick,  New  York  : 
William  Radford,  New  York  ; 
John  B.  Steele,  New  York  : 
Austin  A.  King,  Missouri ; 
James  S.  Rollins.  Missouri. 


76 

reconsideration  was  carried,  and  the  final  passage  of 
the  Henderson  resolution  accomplished,  by  a  vote 
of  119  in  its  favor  to  56  against,  and  8  not  voting.* 


*  Of  this  vote  Gov.  Ashley  has  well  said  :  "If  the  vote  is  ana 
lyzed,  it  will  be  seen  that  of  the  119  votes  recorded  for  the  amend 
ment  thirteen  (13)  were  by  men  from  the  border  States,  and  eleven 
(11)  were  by  Democrats  from  the  free  States.  If  but  three  (3)  out 
of  the  twenty-four  (24)  who  voted  with  us  had  voted  against  the 
amendment  it  would  have  failed.  If  but  four  (4)  of  the  eight  (8) 
members  who  were  absent  had  appeared  and  voted  against,  it 
would  have  been  lost.  Had  all  the  Northern  Democrats  who  sup 
ported  the  amendment  voted  against,  it  would  have  been  defeated 
by  twenty-six  (26)  votes.  Had  all  the  border-State  men  who  voted 
for  it  voted  against,  it  would  have  failed  by  thirty-two  (32)  votes. 

1 '  If  the  border-State  men  and  Northern  Democrats  who  voted 
for  the  amendment  had  voted  against,  it  would  have  failed  by  sixty- 
five  (65)  votes. 

"  Mr.  Lincoln  was  especially  delighted  at  the  vote  which  the 
amendment  received  from  the  border  slave  States,  and  frequently 
congratulated  me  on  that  result. 

"  Bancroft,  the  historian,  has  drawn  with  a  graphic  pen  the 
character  of  many  of  the  able  and  illustrious  men  of  the  Revolution 
which  achieved  our  independence.  In  writing  of  George  Mason,  of 
Virginia,  he  said  :  '  His  sincerity  made  him  wise  and  bold,  modest 
und  unchanging,  with  a  scorn  for  anything  mean  and  cowardly,  as 
illustrated  in  his  unselfish  attachment  to  human  freedom.'  And 
these  identical  qualities  of  head  and  heart  were  pre-eminently  con 
spicuous  in  all  the  border  statesmen  who  voted  for  the  Thirteenth 
Amendment. 

"  It  would  be  difficult  in  any  age  or  country  to  find  grander  or 
more  unselfish  and  patriotic  men  than  Henry  Winter  Davis  and 
Governor  Francis  Thomas,  of  Maryland,  or  James  S.  Rollins,  Frank 
P.  Blair  and  Governor  King,  of  Missouri,  or  George  H.  Yeaman,  of 
Kentucky,  or  N.  P.  Smithers,  of  Delaware.  And  not  less  worthy  of 
mention,  for  their  unchanging  fidelity  to  principle,  are  all  the  North 
ern  Democrats  who  voted  for  the  amendment,  prominent  among 
whom  I  may  name  Governor  English,  of  Connecticut,  Judge  Homer 
A.  Nelson  and  Moses  S.  Odell,  of  New  York,  Archibald  McAllister, 
of  Pennsylvania,  Wells  A.  Hutching,  of  Ohio,  and  A.  C.  Baldwin,  of 
Michigan. 

"  Of  the  twenty -four  (24)  border-State  and  Northern  men  who 
made  up  this  majority,  which  enabled  us  to  win  this  victory,  all  had 
defied  their  party  discipline,  and  had  deliberately  and  with  unfalter 
ing  faith  marched  to  their  political  death.  These  are  the  men  whom 


77 

The  educating  influence  of  the  war  had  effected  this 
great  change.  The  widest  interest  and  the  most  in 
tense  feeling  had  watched  and  waited  for  the  seal  of 
the  final  affirmative  of  the  House  upon  the  Senate's 
proposition,  which  was  inspired  by  the  noblest  sen- 


our  future  historians  will  honor,  and  to  whom  this  nation  owes  a 
debt  of  eternal  gratitude." 

One  of  these  men,  thus  worthy  of  lasting  honor,  was  the  Hon. 
George  H.  Yeaman,  of  Kentucky.  At  the  risk  of  transgressing 
somewhat  the  privacy  of  personal  correspondence  I  venture  to  give 
the  following  extract  from  a  descriptive  letter  which,  some  time 
ago,  he  wrote  to  me  at  my  request : 

"  The  Amendment  abolishing  slavery  in  the  United  States  had 
been  introduced,  and  was  approaching  a  vote  in  1865.  My  first  res 
olution  was  not  to  dodge,  but  to  face  the  responsibility.  There  was 
still  a  strong  Union  element  in  my  district,  but  I  believed  that  the 
changes  had  been  such  that,  on  a  full  vote,  the  'Southern  Sympa 
thizers  '  (which  was  then  the  name)  would  outnumber  them,  and  I 
knew  that  those  then  ready  for  actual  Emancipation  were  only  a 
small  minority.  My  table  was  groaning  under  piles  of  letters  from 
friends  and  Unionists — none  from  opponents — only  two  or  three 
letters  suggesting  that  as  slavery  was  inevitably  doomed,  why  not 
let  it  go  now  and  be  done  with  it.  The  great  majority  contained 
earnest  warnings  against  making  a  mistake,  being  too  far  in  ad 
vance  of  the  people,  and  against  spoiling  what  they  felt  were  un 
usually  promising  political  prospects. 

"  Now,  you  see  the  strain.  In  a  small  way  a  slaveholder  (no 
real  pecuniary  interest  imperiled)  representing  a  slave-holding  and 
abolition-hating  community,  elected  on  the  platform  of  '  the 
Constitution  as  it  is,  the  Union  as  it  was,'  knowing  perfectly  well 
what  was  right  and  what  ought  to  be  done,  knowing  that  away 
down  in  the  bottom  of  my  heart  I  had  always  been  against  the 
institution,  because  I  knew  it  was  wrong  ;  yet  with  a  fair  prospect 
of  coming  back  to  Congress  if  I  voted  against  the  amendment. 

"This  narration  would  not  be  truthful  if  I  were  to  say  that  I  did 
not  hesitate.  I  claim  no  such  credit.  I  was  troubled,  I  thought 
much,  and  I  felt  much.  There  seemed  to  be  an  idea 'in  the 
House  that  I  was  doubtful  and  was  suffering  a  pretty  severe 
ordeal.  I  must  do  opponents  of  the  Amendment  the  justice 
to  say  that  not  one  of  them  approached  me  to  'talk  it  over.' 
Only  one,  Henry  Winter  Davis,  came  from  the  friends  of  the 
Amendment.  His  manner  was  delicate,  discreet  and  so  extremely 


78 

tirnents  of  humanity.  A  great  audience  crowded 
the  galleries  and  every  place  of  access.  The  Senators, 
members  of  the  Cabinet  and  Judges  of  the  Supreme 
Court  were  on  the  floor  of  the  House  also  to  watch  the 
issue  of  the  roll  call.  When  the  Speaker  announced 
the  result,  less  than  one- third  against  and  more  than 


deferential,  while  earnest,  that  it  convinced  me  he  had  read 
my  thoughts  in  my  countenance.  He  talked  very  much  as 
he  would  to  a  friend  in  sorrow.  I  gently  put  him  off  with  the  as 
surance  that  I  was  considering  the  matter  with  all  the  care  and 
earnestness  a  man  could  give  to  any  question.  Just  because  he 
had  walked  across  the  House  to  talk  to  me  about  it  my  pride  pre 
vented  me  from  telling  him  that  I  had  already  found  that  I  could 
not  keep  the  peace  witli  my  own  conscience,  could  not  preserve  my 
own  self-respect,  without  voting  in  the  affirmative.  If  I  had 
frankly  committed  myself  then  it  would  have  saved  the  next 
struggle. 

"Doubt,  hesitation,  came  again.  It  was  positively  painful. 
Walking  the  floor  of  my  room  at  midnight,  light  and  thoughts  and 
resolution  seemed  to  come  as  volunteers ;  and  some  of  the  thoughts 
were  not  very  pleasant.  One  silent,  unspoken  soliloquy  was  as  fol 
lows  :  '  What  are  you  hesitating  about  ?  You  know  what  is  right. 
You  know  what  you  ought  to  do.  You  are  discussing  and  weigh 
ing  questions  of  expediency,  questions  personal  to  yourself.  You 
are  not  really  thinking  about  the  question  of  freedom  or  slavery. 
You  are  a  moral,  a  political  coward.' 

''  It  is  no  exaggeration  to  say  that  I  felt  as  if  I  heard  those  very 
words.  The  die  was  cast ;  in  another  moment  the  Rubicon  was 
passed.  I  stopped  walking  and  stood  still.  With  hand  raised 
toward  Heaven,  I  literally  and  verbally  swore  a  political  oath,  that 
I  would  emancipate  myself  first,  and  then  do  what  I  could  to 
emancipate  other  slaves. 

"  The  rough  material  for  my  speech  was  soon  put  in  form.  The 
vote  came  soon  after  it  was  delivered.  As  soon  as  the  count  was 
announced  there  was  a  great  uproar.  Coif  ax  ran  across  and  threw 
his  arms  around  my  neck.  Next  day  brought  a  manly  and  earnest 
letter  of  congratulation  from  Judge  Holt,  the  first  of  dozens  and 
hundreds.  Mr.  Seward  afterwards  conferred  with  me  about  going 
to  Frankfort  to  get  the  amendment  ratified  by  the  Kentucky  Legis 
lature.  I  told  him  it  was  no  use,  it  could  not  be  done. 

"  At  the  next  election,  August,  1865,  I  was  beaten  by  only  seven 
or  eight  hundred  majority,  showing  that  the  people  are  sometimes 
better  prepared  for  a  forward  move  than  is  supposed." 


79 

two-thirds  for,  there  was  an  uproar  of  delight.  When 
this  had  lessened,  Mr.  Ingersoll,  of  Illinois,  said  :  "  In 
honor  of  this  immortal  and  sublime  event  I  move  that 
the  House  do  now  adjourn."  This  commemorative 
motion  passed  with  delighted  approval.  The  requisite 
acceptance  of  the  proposed  amendment  by  the  several 
States,  and  the  official  announcement  of  this  fact  by 
the  Hon.  William  H.  Seward,  Secretary  of  State,  De 
cember  18th,  1865,  fixed  the  Thirteenth  Amendment 
in  the  Constitution,  there  to  remain  forever  as  the 
transplanted  jewel  of  the  Ordinance  of  1787. 

Let  these  events  drop  out  now  that  have  intervened, 
that  we  may  see  how  close  those  men  of  '76  have  come 
to  us,  and  the  part  that  they  have  played  in  our  own 
lives.  In  a  most  real  sense  the  men  from  the  States 
which  are  within  what  was  the  Northwest  Territory 
were  soldiers  of  the  Ordinance  of  1787.  More  than  a 
million  soldiers  came  from  those  five  great  States, 
besides  all  those  from  Kansas  and  Nebraska,  and  from 
Oregon  and  California.  We  were  among  those  soldiers, 
or  else  they  were  our  comrades.  So  far  as  that  million 
and  more  of  men  may  have  turned  the  scale  of  war,  it 
was  the  Ordinance  that  gave  to  their  lives  that  result. 
To  whatever  extent  the  Ordinance  did  that,  to  that 
extent  our  lives  have  been  directly  influenced  by  those 
men  of  '76  who  were  the  Ordinance.  The  Ordinance 
itself  was  not  a  living  force,  and  could  not  be  till  its 
articles  of  compact  were  put  on  as  armor  by  those 
heroes  of  the  Revolution.  They  carried  its  flag  into 
the  wilderness,  and  there  they  won  new  fields ;  and 
they  are  buried  there.  That  was  not,  even  for  us,  the 
last  of  them,  I  think.  We  read  that  when  our  Lord 
was  crucified,  the  bodies  of  the  saints  that  slept  arose 


80 

and  went  into  the  city.  So  (reverently)  it  seems  to  me 
that  when  Secession  stretched  upon  its  cross  of  war 
the  Love  of  Freedom  in  this  land  of  ours,  those  Revo 
lutionary  heroes  came  again,  not  to  our  sight  as  such, 
but  as  a  million  soldiers  from  those  States  from  which 
they  had  excluded  slavery  ;  and  in  that  guise  they 
marched  and  fought  with  us,  until  there  came  upon 
the  earth  a  new  and  risen  Liberty  that  builds  a  broader 
and  a  higher  peace. 

Deep  into  its  corner  stone  is  cut  the  precept  of  the 
Ordinance,  that  THERE  SHALL  BE  NEITHER  SLAVERY  NOR 

INVOLUNTARY  SERVITUDE,  EXCEPT  AS  A  PUNISHMENT  FOR 
CRIME. 


81 


APPENDIX. 

THE  ORDINANCE  OF  1787. 
(THE  CONFEDERATE  CONGRESS,  JULY  13TH,  1787). 

AN  ORDINANCE  for  the   Government  of   the  Terri 
tory  of  the  United  States  Northwest  of 
the  River  Ohio. 

SECTION  1.  Be  it  ordained  by  the  United  States  in 
Congress  assembled,  That  the  said  territory,  for  the 
purpose  of  temporary  government,  be  one  district,  sub 
ject,  however,  to  be  divided  into  two  districts,  as  future 
circumstances  may,  in  the  opinion  of  Congress,  make  it 
expedient. 

SEC.  2.  Be  it  ordained  by  the  authority  aforesaid, 
That  the  estates  both  of  resident  and  non-resident  pro 
prietors  in  the  said  territory,  dying  intestate,  shall  de 
scend  to  and  be  distributed  among  their  children  and  the 
descendants  of  a  deceased  child  in  equal  parts,  the  de 
scendants  of  a  deceased  child  or  grandchild  to  take  the 
share  of  their  deceased  parent  in  equal  parts  among 
them  ;  and  where  there  shall  be  no  children  or  descend 
ants,  then  in  equal  parts  to  the  next  of  kin,  in  equal  de 
gree  ;  and  among  collaterals,  the  children  of  a  deceased 
brother  or  sister  of  the  intestate  shall  have,  in  equal  parts 
among  them  their  deceased  parent's  share  ;  and  there 
shall,  in  no  case,  be  a  distinction  between  kindred  of  the 
whole  and  half  blood  ;  saving  in  all  cases  to  the  widow 
of  the  intestate,  her  third  part  of  the  real  estate 


82 

for  life,  and  one-third  part  of  the  personal  estate  ; 
and  this  law  relative  to  descents  and  dower  shall  re 
main  in  full  force  until  altered  by  the  Legislature 
of  the  district.  And  until  the  Governor  and  Judges 
shall  adopt  laws  as  hereinafter  mentioned,  estates 
in  the  said  territory  may  be  devised  or  bequeathed  by 
wills  in  writing,  signed  and  sealed  by  him  or  her  in 
whom  the  estate  may  be  (being  of  full  age),  and  at 
tested  by  three  witnesses  ;  and  real  estates  may  be 
conveyed  by  lease  and  release,  or  bargain  and  sale, 
signed,  sealed,  and  delivered  by  the  person,  being  of 
full  age,  in  whom  the  estate  may  be,  and  attested  by 
two  witnesses,  provided  such  wills  be  duly  proved, 
and  such  conveyances  be  acknowledged,  or  the  execu 
tion  thereof  duly  proved,  and  be  recorded  within  one 
year  after  proper  magistrates,  courts,  and  registers 
shall  be  appointed  for  that  purpose  ;  and  personal  prop 
erty  may  be  transferred  by  delivery,  saving,  however, 
to  the  French  and  Canadian  inhabitants,  and  other  set 
tlers  of  the  Kaskaskies,  Saint  Vincents,  and  the  neigh 
boring  villages,  who  have  heretofore  professed  them 
selves  citizens  of  Virginia,  their  laws  and  customs  now 
in  force  among  them,  relative  to  the  descent  and  con 
veyance  of  property. 

SEC.  3.  Be  it  ordained  by  the  authority  aforesaid, 
that  there  shall  be  appointed,  from  time  to  time,  by 
Congress,  a  Governor,  whose  commission  shall  continue 
in  force  for  the  term  of  three  years,  unless  sooner  re 
voked  by  Congress ;  he  shall  reside  in  the  district,  and 
have  a  freehold  estate  therein,  in  one  thousand  acres 
of  land,  while  in  the  exercise  of  his  office. 

SEC.  4.  There  shall  be  appointed  from  time  to  time, 
by  Congress,  a  secretary,  whose  commission  shall  con 
tinue  in  force  for  four  years,  unless  sooner  revoked  ; 
he  shall  reside  in  the  district,  and  have  a  freehold  es 
tate  therein,  in  five  hundred  acres  of  land,  while  in  the 
exercise  of  his  office.  It  shall  be  his  duty  to  keep  and 
preserve  the  acts  and  laws  passed  by  the  Legislature,  and 


83 

the  public  records  of  the  district,  and  the  proceedings  of 
the  Governor  in  his  executive  department,  and  transmit 
authentic  copies  of  such  acts  and  proceedings  every  six 
months  to  the  Secretary  of  Congress.  There  shall  also 
be  appointed  a  court,  to  consist  of  three  Judges,  any 
two  of  whom  to  form  a  court,  who  shall  have  a  com 
mon  law  jurisdiction,  and  reside  in  the  district,  and 
have  each  therein  a  freehold  estate,  in  five  hundred 
acres  of  land,  while  in  the  exercise  of  their  offices  ;  and 
their  commissions  shall  continue  in  force  during  good 
behavior. 

SEC.  5.  The  Governor  and  Judges,  or  a  majority  of 
them,  shall  adopt  and  publish  in  the  district  such  laws 
of  the  original  States,  criminal  and  civil,  as  may  be 
necessary  and  best  suited  to  the  circumstances  of  the 
district,  and  report  them  to  Congress  from  time  to  time, 
which  laws  shall  be  in  force  in  the  district  until  the 
organization  of  the  General  Assembly  therein,  unless 
disapproved  of  by  Congress,  but  afterwards  the  Legis 
lature  shall  have  authority  to  alter  them  as  they  shall 
think  fit. 

SEC.  6.  The  Governor,  for  the  time  being,  shall  be 
commander-in-chief  of  the  militia,  appoint  and  com 
mission  all  officers  in  the  same  below  the  rank  of  gen 
eral  officers  ;  all  general  officers  shall  be  appointed  and 
commissioned  by  Congress. 

SEC.  7.  Previous  to  the  organization  of  the  General 
Assembly  the  Governor  shall  appoint  such  magistrates 
and  other  civil  officers,  in  each  county  or  township,  as 
he  shall  find  necessary  for  the  preservation  of  the 
peace  and  good  order  in  the  same.  After  the  General 
Assembly  shall  be  organized  the  powers  and  duties  of 
magistrates  and  other  civil  officers  shall  be  regulated 
and  defined  by  the  said  Assembly ;  but  all  magistrates 
and  other  civil  officers,  not  herein  otherwise  directed, 
shall,  during  the  continuance  of  this  temporary  govern 
ment,  be  appointed  by  the  Governor. 

SEC.  8.  For  the  prevention  of  crimes  and  injuries,  the 


84 

laws  to  be  adopted  or  made  shall  have  force  in  all  parts 
of  the  district,  and  for  the  execution  of  process,  crim 
inal  and  civil,  the  Governor  shall  make  proper  divisions 
thereof;  and  he  shall  proceed,  from  time  to  time,  as 
circumstances  may  require,  to  lay  out  the  parts  of  the 
district  in  which  the  Indian  titles  shall  have  been  ex 
tinguished,  into  counties  and  townships,  subject,  how 
ever,  to  such  alterations  as  may  thereafter  be  made  by 
the  Legislature. 

SEC.  9.  So  soon  as  there  shall  be  five  thousand  free 
male  inhabitants  of  full  age  in  the  district,  upon  giving 
proof  thereof  to  the  Governor,  they  shall  receive  author 
ity,  with  time  and  place,  to  elect  representatives  from 
their  counties  or  townships  to  represent  them  in  the 
General  Assembly  ;  Provided,  That  for  every  five  hun 
dred  free  male  inhabitants  there  shall  be  one  represen 
tative,  and  so  on,  progressively,  with  the  number  of 
free  male  inhabitants,  shall  the  right  of  representation 
increase,  until  the  number  of  representatives  shall 
amount  to  twenty-five  :  after  which  the  number  and 
proportion  of  representatives  shall  be  regulated  by  the 
Legislature  :  Provided,  That  no  person  be  eligible  or 
qualified  to  act  as  a  representative  unless  he  shall  have 
been  a  citizen  of  one  of  the  United  States  three  years 
and  be  a  resident  in  the  district  or  unless  he  shall  have 
resided  in  the  district  three  years,  and  in  either  case 
shall  likewise  hold  in  his  own  right,  in  fee  simpJe,  two 
hundred  acres  of  land  within  the  same  ;  Provided  also, 
That  a  freehold  in  fifty  acres  of  land  in  the  district, 
having  been  a  citizen  of  one  of  the  States,  and  being 
resident  in  the  district  or  the  like  freehold  and  two 
years'  residence  in  the  district  shall  be  necessary  to 
qualify  a  man  as  an  elector  of  a  representative. 

SEC.  10.  The  representatives  thus  elected  shall  serve 
for  the  term  of  two  years,  and  in  case  of  the  death  of  a 
representative  or  removal  from  office  the  Governor  shall 
issue  a  writ  to  the  county  or  township  for  which  he  was 


85 

a  member  to  elect  another  in  his  stead  to    serve  for  the 
residue  of  the  term. 

SEC.  11.  The  General  Assembly,  or  Legislature,  shall 
consist  of  the  Governor,  Legislative  Council  and  a 
House  of  Representatives.  The  Legislative  Council 
shall  consist  of  five  members,  to  continue  in  office  five 
years,  unless  sooner  removed  by  Congress  ;  any  three 
of  whom  to  be  a  quorum  ;  and  the  members  of  the 
Council  shall  be  nominated  and  appointed  in  the  fol 
lowing  manner,  to  wit  :  As  soon  as  Representatives 
shall  be  elected  the  Governor  shall  appoint  a  time  and 
place  for  them  to  meet  together,  and  when  met  they 
shall  nominate  ten  persons,  resident  in  the  district,  and 
each  possessed  of  a  freehold  in  five  hundred  acres  of 
land,  and  return  their  names  to  Congress,  five  of  whom 
Congress  shall  appoint  and  commission  to  serve  as 
aforesaid  ;  and  whenever  a  vacancy  shall  happen  in  the 
Council,  by  death  or  removal  from  office,  the  House  of 
Representatives  shall  nominate  two  persons,  qualified 
as  aforesaid,  for  each  vacancy,  and  return  their  names 
to  Congress,  one  of  whom  Congress  shall  appoint  and 
commission  for  the  residue  of  the  term  ;  and  every  five 
years,  four  months  at  least  before  the  expiration  of  the 
time  of  service  of  the  members  of  the  Council,  the  said 
House  shall  nominate  ten  persons,  qualified  as  afore 
said,  and  return  their  names  to  Congress,  five  of  whom 
Congress  shall  appoint  and  commission  to  serve  as 
members  of  the  Council  five  years  unless  sooner  re 
moved.  And  the  Governor,  Legislative  Council  and 
House  of  Representatives  shall  have  authority  to 
make  laws  in  all  cases  for  the  good  government 
of  the  district,  not  repugnant  to  the  principles 
and  articles  in  this  ordinance  established  and  de 
clared.  And  all  bills  having  passed  by  a  majority 
in  the  House,  and  by  a  majority  in  the  Council,  shall  be 
referred  to  the  Governor  for  his  assent ;  but  no  bill  or 
legislative  act  whatever  shall  be  of  any  force  without 
his  assent.  The  Governor  shall  have  power  to  con- 


86 

vene,  prorogue,  and  dissolve  the  General  Assembly 
when,  in  his  opinion,  it  shall  be  expedient. 

SEC.  12.  The  Governor,  Judges,  Legislative  Council, 
Secretary,  and  such  other  officers  as  Congress  shall 
appoint  in  the  district  shall  take  an  oath  or  affirmation 
of  fidelity  and  of  office ;  the  Governor  before  the 
President  of  Congress,  and  all  other  officers  before  the 
Governor.  As  soon  as  a  legislature  shall  be  formed  in 
the  district,  the  Council  and  House  assembled,  in  one 
room,  shall  have  authority,  by  joint  ballot,  to  elect  a 
delegate  to  Congress,  who  shall  have  a  seat  in  Congress, 
with  a  right  of  debating,  but  not  of  voting,  during  this 
temporary  government. 

SEC.  13.  And  for  extending  the  fundamental  princi 
ples  of  civil  and  religious  liberty,  which  form  the  basis 
whereon  these  republics,  their  laws  and  constitutions, 
are  erected  ;  to  fix  and  establish  those  principles  as  the 
basis  of  all  laws,  constitutions,  and  governments,  which 
forever  hereafter  shall  be  formed  in  the  said  territory; 
to  provide,  also,  for  the  establishment  of  States,  and 
permanent  government  therein,  and  for  their  admission 
to  a  share  in  the  Federal  councils  on  an  equal  footing 
with  the  original  States,  at  as  early  periods  as  may  be 
consistent  with  the  general  interest. 

SEC.  14.  It  is  hereby  ordained  and  declared  by  the 
authority  aforesaid  that  the  following  articles  shall  be 
considered  as  articles  of  compact  between  the  original 
States  and  the  people  and  States  in  the  said  Territory, 
and  forever  remain  unalterable,  unless  by  common  con 
sent,  to  wit : 

AKTICLE    I. 

No  person  demeaning  himself  in  a  peaceable  and 
orderly  manner  shall  ever  be  molested  on  account  of 
his  mode  of  worship  or  religions  sentiments  in  the  said 
Territory. 


87 
ARTICLE   II. 

The  inhabitants  of  the  said  Territory  shall  always 
be  entitled  to  the  benefits  of  the  writs  of  habeas  corpus, 
and  of  the  trial  by  jury  ;  of  a  proportionate  representa 
tion  of  the  people  in  the  Legislature,  and  of  judicial 
proceedings  according  to  the  course  of  the  common 
law.  All  persons  shall  be  bailable  unless  for  capital 
offenses  where  the  proof  shall  be  evident  or  the  pre 
sumption  great.  All  fines  shall  be  moderate,  and  no 
cruel  or  unusual  punishments  shall  be  inflicted.  No 
man  shall  be  deprived  of  his  liberty  or  property  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land  ;*and 
should  the  public  exigencies  make  it  necessary  for  the 
common  preservation  to  take  any  person's  propert}r,  or 
to  demand  his  particular  services,  full  compensation 
shall  be  made  for  the  same.  And,  in  the  just  preserva 
tion  of  rights  and  property,  it  is  understood  and  de 
clared  that  no  law  ought  ever  to  be  made  or  have  force 
in  the  said  Territory  that  shall,  in  any  manner  whatever, 
interfere  with  or  affect  private  contracts,  or  engage 
ments,  bona  ftde,  and  without  fraud  previously  formed. 


ARTICLE   III. 

Religion,  morality  and  knowledge  being  necessary  to 
good  government  and  the  happiness  of  mankind,  schools 
and  the  means  of  education  shall  forever  be  encouraged. 
The  utmost  good  faith  shall  always  be  observed  towards 
the  Indians  ;  their  lands  and  property  shall  never  be 
taken  from  them  without  their  consent  ;  and  in  their 
property,  rights  and  liberty  they  never  shall  be  invaded 
or  disturbed,  unless  in  just  and  lawful  wars  authorized 
by  Congress ;  but  laws  founded  in  justice  and  humanity 
shall,  from  time  to  time,  be  made  for  preventing  wrongs 
being  done  to  them,  and  for  preserving  peace  and 
friendship  with  them. 


88 
AETICLE  IV. 

The  said  Territory,  and  the  States  which  may  be 
formed  therein,  shall  forever  remain  a  part  of  this  Con 
federacy  of  the  United  States  of  America,  subject  to 
the  Articles  of  Confederation,  and  to  such  alterations 
therein  as  shall  be  constitutionally  made  ;  and  to  all 
the  acts  and  ordinances  of  the  United  States  in  Con 
gress  assembled,  conformable  thereto.  The  inhabi 
tants  and  settlers  in  the  said  Territory  shall  be  sub 
ject  to  pay  a  part  of  the  Federal  debts,  contracted 
or  to  be  contracted,  and  a  proportional  part  of  the 
expenses  of  government  to  be  apportioned  on  them 
by  Congress,  according  to  the  same  common  rule  and 
measure  by  which  apportionments  thereof  shall  be 
made  on  the  other  States ;  and  the  taxes  for  paying 
their  proportion  shall  be  laid  and  levied  by  the  au 
thority  and  direction  of  the  Legislatures  of  the  dis 
trict,  or  districts,  or  new  States,  as  in  the  original 
States,  within  the  time  agreed  upon  by  the  United 
States  in  Congress  assembled.  The  Legislatures  of 
those  districts,  or  new  States,  shall  never  interfere 
with  the  primary  disposal  of  the  soil  by  the  United 
States  in  Congress  assembled,  nor  with  any  regula 
tions  Congress  may  find  necessary  for  securing  the 
title  in  such  soil  to  the  l>ona  fide,  purchasers.  No  tax 
shall  be  imposed  on  lands  the  property  of  the  United 
States  ;  and  in  no  case  shall  non-resident  proprietors  be 
taxed  higher  than  residents.  The  navigable  waters 
leading  into  the  Mississippi  and  Saint  Lawrence,  and 
the  carrying  places  between  the  same,  shall  be  common 
highways,  and  forever  free,  as  well  to  the  inhabitants 
of  the  said  territory  as  to  the  citizens  of  the  United 
States,  and  those  of  any  other  States  that  may  be  ad 
mitted  into  the  confederacy,  without  any  tax,  impost,  or 
duty  therefor. 


89 

*» 

ARTICLE  V. 

There  shall  be  formed  in  the  said  Territory  not  less 
than  three  nor  more  than  five  States  ;  and  the  bound 
aries  of  the  States,  as  soon  as  Virginia  shall  alter  her 
act  of  cession  and  consent  to  the  same,  shall  become 
fixed  and  established  as  follows,  to  wit :  The  Western 
State  in  the  said  territory  shall  be  bounded  by  the 
Mississippi,  the  Ohio,  and  the  Wabash  Rivers,  a  direct 
line  drawn  from  the  Wabash  and  Post  Vincents,  due 
north,  to  the  territorial  line  between  the  United 
States  and  Canada,  and  by  the  said  territorial  line 
to  the  Lake  of  the  Woods  and  Mississippi.  The 
Middle  State  shall  be  bounded  by  the  said  diiect  line, 
the  Wabash  from  Post  Vincents  to  the  Ohio,  by  the 
Ohio,  by  a  direct  line  drawn  due  north  from  the  mouth 
of  the  Great  Miami  to  the  said  territorial  line,  and  by 
the  said  territorial  line.  The  Eastern  State  shall  be 
bounded  by  the  last-mentioned  direct  line,  the  Ohio, 
Pennsylvania,  and  the  said  territorial  line.  Provided, 
however,  and  it  is  further  understood  and  declared, 
that  the  boundaries  of  these  three  States  shall  be 
subject  so  far  to  be  altered,  that,  if  Congress  shall 
hereafter  find  it  expedient,  they  shall  have  authority  to 
form  one  or  two  States  in  that  part  of  the  said  territory 
which  lies  north  of  an  east  and  west  line  drawn  through 
the  southerly  bend  or  extreme  of  Lake  Michigan.  And 
whenever  any  of  the  said  States  shall  have  sixty  thou 
sand  free  inhabitants  therein,  such  State  shall  be 
admitted,  by  its  delegates,  into  the  Congress  of  the 
United  States,  on  an  equal  footing  with  the  original 
States  in  all  respects  whatever  ;  and  shall  be  at  liberty 
to  form  a  permanent  constitution  and  State  govern 
ment.  Provided  the  constitution  and  government  so  to 
be  formed  shall  be  republican,  and  in  conformity  to  the 
principles  contained  in  these  articles,  and,  so  far  as  it 
can  be  consistent  with  the  general  interest  of  the  Con 
federacy,  such  admission  shall  be  allowed  at  an  earlier 


90 

period,  and  when  there  may  be  a  less   number   of    free 
inhabitants  in  the  State  than  sixty  thousand. 

ARTICLE  VI. 

There  shall  be  neither  slavery  nor  involuntary  servi 
tude  in  the  said  territory,  otherwise  than  in  the  punish 
ment  of  crimes,  whereof  the  party  shall  have  been  duly 
convicted.  Provided  always  that  any  person  escaping 
into  the  same  from  whom  labor  or  service  is  lawfully 
claimed  in  any  one  of  the  original  States,  such  fugitive 
may  be  lawfully  reclaimed  and  conveyed  to  the  person 
claiming  his  or  her  labor  or  service  as  aforesaid. 

Be  it  ordained  by  the  authority  aforesaid  that  the 
resolutions  of  the  23d  of  April,  1784,  relative  to  the 
subject  of  this  ordinance,  be  and  the  same  are  hereby 
repealed  and  declared  null  and  void. 

Done  by  the  United  States  in  Congress  assembled, 
the  13th  day  of  July,  in  the  year  of  our  Lord,  1787,  and 
of  their  sovereignty  and  independence  the  twelfth. 


[1301] 


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